The application is not published if it has been finally refused or deemed withdrawn or withdrawn before the termination of the technical preparations for publication. These preparations are considered terminated at the end of the day five weeks before the end of the eighteenth month from the date of filing or priority (see the Notice from the EPO, OJ EPO 2006, 406). The application is, however, published if, upon termination of the technical preparations for publication, a request for a decision under Rule 112(2) has been received but no final decision has yet been taken (see OJ EPO 1990, 455).
If after termination of the technical preparations the application is withdrawn to avoid publication, non-publication cannot be guaranteed. The EPO will however try (in accordance with the principles of J 5/81) to prevent publication on a case-by-case basis if the stage reached in the publication procedure permits this reasonably easily.
The application may be withdrawn by means of a signed declaration, which should be unqualified and unambiguous (see J 11/80). The applicant is bound by an effective declaration of withdrawal (see C-V, 11), but may make it subject to the proviso that the content of the application is not made known to the public. This takes into account the procedural peculiarity that the applicant who makes his declaration of withdrawal later than five weeks before the date of publication cannot know whether publication can still be prevented. However, neither the application nor the designation of a Contracting State may be withdrawn as from the time a third party proves that he has initiated proceedings concerning entitlement and up to the date on which the EPO resumes the proceedings for grant.