9.8.1 Withdrawal of appeal under Rule 103(1)(b) EPC

Under the EPC 1973, when appeal proceedings were terminated by the withdrawal of the appeal, R. 67 EPC 1973 was in general not applicable (see J 12/86, OJ 1988, 83; T 41/82, OJ 1982, 256; T 773/91; J 30/94; T 372/99; T 543/99; T 1216/04; T 552/07; for exceptions to this rule in case of a violation of the principle of the protection of legitimate expectations see J 30/94 and T 308/05).

Under the EPC 2000, however, the appeal fee is reimbursed if the appeal is withdrawn before the filing of the statement of grounds of appeal and before the period for filing that statement has expired (R. 103(1)(b) EPC). For cases where this provision was first applied, see T 1495/08, T 2052/08, T 1822/09.

For a case in which the patent application was withdrawn after the expiration of the period for filing the statement of grounds and the appeal fee was thus not reimbursed, see T 683/08. The board in T 1613/08 held that R. 103(1)(b) EPC did not confer any discretion on the boards to excuse missing the end of the period even by as short a time as one day.