6.4. Deemed withdrawal of patent application

If a European patent application is finally deemed to be withdrawn after an admissible appeal against a decision refusing it has been filed, the appeal can usually be considered disposed of, because there is no possibility of a European patent being granted for the application. However, where, as in the case before the board, the sole aim of the appeal is to obtain a finding by the board that a substantial procedural violation occurred in the first instance proceedings, such that the appealed decision is to be set aside and the appeal fee reimbursed, the appeal cannot be dealt with in this way. In these circumstances the appellant has a legitimate interest in receiving a decision on the merits of the appeal (T 2434/09).

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