5. Withdrawal of request

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. However, 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 Convention operated. The decision under appeal had omitted to give reasons for the refusal of the higher ranking requests still pending before the examining division, which amounted to a substantial procedural violation.

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). Relying 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. 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.

In T 2301/12 the proprietor had replaced the initial requests with new requests before the opposition division. The board held that the use of the word "replace" implied that the initial main request was no longer the current main request, and since there was no attempt to retain it as a new auxiliary request either, it was difficult to avoid the conclusion that it had been simply withdrawn. The new requests had been annexed to the minutes and the first of them was clearly entitled "main request". The board did not accept the argument that the titles of requests should be considered mere labels for identification. Where a proprietor filed multiple requests, there had to be a single main request, and it had to be apparent at every stage of the proceedings which request this was. One reason why this was essential was that where the main request was not allowed, the proprietor was adversely affected by the decision, whereas this would not normally be the case if the main request was allowed.

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