- The Board finds that a withdrawal of a request for oral proceedings by the appellant can be a ground for partial reimbursement of the appeal fee even if the withdrawal is conditional (in this case “on the condition that auxiliary request 6, but not any higher-ranking request, be held allowable”.
- The Board also appears to find that the respondent does not need to withdraw its request for oral proceedings within the one-month time limit, i.e. that even if after the expiry of the one month period, there is still a valid and pertinent request for oral proceedings (of the respondent), which is only later withdrawn such that oral proceedings are cancelled the appeal fee is to be reimbursed at 25%.
- The respondent withdrew its request for oral proceedings well after one month after notification of the preliminary opinion, however within the possible extension due to COVID-19. The Board simply does not refer to the date of the respondent's letter.
EPO T 2141/16 - link
IX. Both parties requested oral proceedings. In a written communication issued in preparation for the oral proceedings dated 24 March 2020, the board expressed the preliminary opinion that the claims of the main request and auxiliary requests 1 to 5 did not meet the requirements of the EPC and that the claims of auxiliary request 6 met those requirements.
X. In its letter dated 28 April 2020, the appellant stated that its request for oral proceedings was withdrawn on the condition that auxiliary request 6, but not any higher-ranking request, be held allowable.
XI. In a reply [dated 26.05.2020] to the board's communication, the respondent stated that its request for oral proceedings was withdrawn on the condition that auxiliary request 6 be held allowable and that, on this condition, auxiliary request 6 was its main request and the higher-ranking requests were withdrawn.
XII. The oral proceedings were cancelled.
3. Reimbursement of the appeal fee
The appellant withdrew its request for oral proceedings within the time limit set under Rule 103(4)(c) EPC, and no oral proceedings took place. Thus, the appeal fee is to be reimbursed at 25%.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the opposition division with the order to maintain the patent with the following claims and a description to be adapted where necessary:
Claims 1 to 7 of the main request, filed as auxiliary request 6 under cover of the respondent's reply to the grounds of appeal dated 23 March 2017.
3. The appeal fee is reimbursed at 25%.
source http://justpatentlaw.blogspot.com/2020/07/t-214116-conditional-withdrawal-request.html
