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Case Law of the Boards of Appeal

 
 
4.1.1 Withdrawal of opposition during opposition proceedings

R. 84(2), second sentence, EPC provides that the opposition proceedings may be continued by the EPO of its own motion if the opposition is withdrawn.

In T 197/88 (OJ 1989, 412) the board, referring to T 156/84 (OJ 1988, 372) held that if an opposition was withdrawn after the dispatch of the communication pursuant to R. 58(4) EPC 1973 (R. 82(1) EPC), the opposition proceedings should, in principle, be continued by the opposition division of its own motion in the public interest. According to the board, proceedings ought to be continued if they had reached such a stage as to be likely to result in limitation or revocation of the European patent without further assistance from the opponent and without the opposition division itself having to undertake extensive investigations.

In T 558/95 the board noted that the main request had been refused by the opposition division before the opposition was withdrawn. The decision concerning this request was thus final; even after the withdrawal of the opposition, it could no longer be reviewed by the department of first instance. The continuation of the proceedings by the EPO of its own motion under R. 60(2), second sentence EPC 1973 (R. 84(2) EPC) therefore applied only to the auxiliary request, which had not been the subject of a final decision.

According to T 283/02, withdrawal of an opposition was a definitive procedural declaration which took away the opponent’s status as an active party to the proceedings. Such a declaration did not require the agreement of either the opposition division or the patent proprietor. It took effect as soon as it was received by the EPO. The decision whether or not to continue the proceedings under R. 60(2) EPC 1973 (R. 84(2) EPC) thus rested solely with the opposition division.