5. Withdrawal of request

In several recent decisions, boards have concluded (contrary to T 1157/01; see next paragraph) that requests can be withdrawn implicitly and that there is an implicit withdrawal when the circumstances leave no doubt that the party did not intend to pursue them (see e.g. T 388/12, T 573/12, T 996/12, T 2301/12, T 52/15, T 1255/16, T 1695/14, T 1155/17 and T 1411/21).

In T 1157/01 the applicant had maintained all its requests (main and three auxiliary requests). When it declared its non-approval of the text proposed for grant based on the third auxiliary request, however, the appellant did not explicitly repeat that it maintained all its previous and higher-ranking requests. The board considered that, according to the general principle "a jure nemo recedere praesumitur" mentioned in G 1/88 (OJ 1989, 189), in the absence of an explicit withdrawal, surrender of a right could not be simply presumed and silence could not be deemed to be equivalent to surrender in the logic of how the EPC operated.

In T 388/12 the board confirmed that, as a general principle of law, surrender of a right could not be simply presumed (with reference to G 1/88). On a strict application of the principle "a jure nemo recedere praesumitur", the withdrawal of a request could only result from acts of the party that manifestly establish such intention. At the same time, the board held that explicit withdrawal of a request would not be required insofar as the intention of the party, as it might result from its behaviour or comments made, was unequivocal.