a) Conditions for the correction 

In J 4/97 the applicants informed the EPO three days after withdrawal that their request had been made erroneously and should be cancelled. The EPO informed the applicants that the withdrawal had come into force and was binding, and notification of the withdrawal was later published in the European Patent Bulletin. However, the Legal Board held that the withdrawal of the application could be corrected under R. 88 EPC 1973 (which corresponds to R. 139 EPC). The legal considerations contained in J 10/87 concerning the retraction of a withdrawal of a designation of a contracting state applied equally to the withdrawal of a patent application as a whole. In particular, it had to be ascertained that the withdrawal had been due to an excusable error, that there was no undue delay in seeking retraction, and that the retraction of the withdrawal had not adversely affected the public interest or the interests of third parties. In the circumstances of the case, the Legal Board held that the mere fact that the withdrawal was retracted after only three days was a strong indication that it had indeed been made in error. The error resulted from confusion between two similar reference numbers assigned by the appellants to their patent applications. In the Legal Board's opinion this mistake could be considered as an excusable oversight. The public interest was not affected because the withdrawal was retracted before the corresponding entry was made in the Register and more than six weeks before the withdrawal was officially notified to the public in the European Patent Bulletin. Thus, at the time the general public was informed of the withdrawal, the public part of the file clearly showed that a request for cancellation of the withdrawal had been filed thereby warning third parties relying on the information published by the EPO. The board also considered that the interests of third parties who might have inspected the file could be protected if a national court applied Art. 122(6) EPC 1973 mutatis mutandis. See however J 5/19 in which the Legal Board did not adhere to e.g. J 10/87 and J 4/03 insofar as these decisions required, as a condition to be met for corrections under R. 139 EPC, that the error was due to an excusable oversight.