3.8.3 Correction of the withdrawal of the application

In J 19/03 the Legal Board noted that it was obvious that corrections of procedural acts having an ab initio effect could have a potentially serious impact on an application, in particular if they related to its territorial extent or to whether the application was pending at all, and raised serious concerns as to legal certainty not only for the applicants vis-à-vis the EPO but also for the public. Therefore, the case law of the boards of appeal took as a starting point that, as a general rule, an applicant was bound by its procedural acts notified to the EPO provided that the procedural statement was unambiguous and unconditional (compare J 11/87, OJ 1988, 367; J 27/94, OJ 1995, 831) and was not allowed to reverse these acts so that they could be considered as never filed (J 10/87, OJ 1989, 323; J 4/97; see also J 2/15). On the other hand, the boards of appeal considered that R. 88 EPC 1973 (R. 139 EPC) acknowledged as a further legal value the desirability of having regard to true, as opposed to ostensible, party intentions in legal proceedings (T 824/00, OJ 2004, 5) in appropriate circumstances. As a result of the conflict between these two legal principles, the boards regarded R. 88, first sentence, EPC 1973 as conferring a discretion on the competent instance to allow or not to allow a correction of an error since it was only stated in this rule that a respective error "may be corrected".

Rule 139 EPC (R. 88 EPC 1973) states that linguistic errors, errors of transcription and mistakes in any document filed with the EPO may be corrected on request. However, if the request for such correction concerns the description, claims or drawings, the correction must be obvious in the sense that it is immediately evident that nothing else would have been intended than what is offered as the correction.