7.3.7 Correction of withdrawal of appeal under Rule 139 EPC

In principle, a correction of a withdrawal of appeal is possible under the EPC (R 3/22, T 695/18, T 2148/18, T 2474/19, T 433/21), though only in exceptional circumstances has such a request for correction been held allowable (see e.g. T 2148/18 where the withdrawal and the request for correction of the withdrawal reached the EPO on the same day).

To be allowable, a request for correction of a withdrawal needs to fulfil the strict criteria of R. 139 EPC, as set out e.g. in T 610/11, in which the board came to the conclusion that the declaration submitted by the appellant's representative to withdraw the appeal could not be considered to contain an error to be corrected under R. 139 EPC. The board stated that the representative did not make any error when declaring the withdrawal of the appeal. Rather, the appellant gave instructions to the representative, which, as it turned out later, did not represent its true intention. In other words, an error occurred during the process of deciding how the appellant should deal with the application. The board referred to the jurisprudence of the boards of appeal according to which, as a general rule, an applicant is bound by its procedural acts notified to the EPO, provided that the procedural statement was unambiguous and unconditional (cf. J 11/87, OJ 1988, 367; J 27/94, OJ 1995, 831), and is not allowed to reverse these acts so that they can be considered as never filed (J 10/87, OJ 1989, 323; J 4/97). The board concluded that in cases where a professional representative acts on behalf of an appellant, an error or mistake in a procedural declaration before the boards of appeal can be corrected under R. 139 EPC only if this error or mistake has been made by the representative himself (see also J 19/03).