c) Intention of the party 

In J 7/19 the board concluded, with reference the case law of the boards of appeal (J 8/80, OJ 1980, 293; J 4/82, OJ 1982, 385) to R. 139 EPC, that mistakes which resulted in a divergence between the party's actual and declared intent were eligible for correction under R. 139 EPC. In the case in hand the applicant decided to abandon the application on the basis of an erroneous assumption. The board found there to be no divergence between the applicant's declaration and its true intention and dismissed the appeal. In the case law of the boards, only errors relating to the declaration, its content or its transmission fell under the notion of a mistake within the meaning of R. 139 EPC. The board explained there were good policy reasons for having this limitation. If the notion of a mistake were extended to also cover a scenario where the declaration correctly reflected a party's intentions, but was based on wrong assumptions, any mistaken assessment of the disclosure of the application, the patentability of the invention, the entitlement to priority, the legal provisions or the related case law would make any withdrawal potentially eligible for correction. This would be detrimental to legal certainty. Where the applicant has made a decision on withdrawal without considering all the relevant circumstances, it must bear the consequences.

In J 19/03 the Legal Board found that under R. 88, first sentence, EPC 1973 (R. 139, first sentence, EPC), it was not sufficient to prove that a divergence had occurred between the true intention of the applicant and the declaration filed by their representative; rather it was additionally required that this divergence was caused by an error of the person who was competent to make the decision on the procedural act before the EPO. Therefore, as a rule, in cases where the party was represented by a professional representative, the error pursuant to R. 88 EPC 1973 had to be an error of the representative in expressing their own intentions.

In J 5/19, however, the Legal Board held that in assessing whether the withdrawal was due to a mistake in the case in hand, only the intention of the applicant and not that of the European representative was relevant. The decision to withdraw the application indeed lay with the former and not the latter.