Key points
- In an examination appeal, the applicant withdraws the appeal and retracts the withdrawal at the same day.
- So, “The appellant filed on 29 November 2021 a first letter stating that they "herewith withdraw the appeal" and on the same day a second letter stating that "the previous unconditional withdrawal of the appeal has been erroneously filed and [they] request that this earlier letter be disregarded" (bold face and underlining omitted). ”
- The retraction is treated as a request for correction under Rule 139 EPC
- " The representative credibly stated that he had made the mistake himself. The first letter filed on 29 November 2021 had been incorrectly formulated by the representative as it did not represent the true intention of the applicant. It emerges from the submitted documents that the instructions of the appellant were clear insofar as they wanted to return to the version for which the Examining Division had already sent a communication under Rule 71(3) EPC (see emails submitted in preparation to the oral proceedings before the Board) being in substance the same as the fourth auxiliary request submitted with the statement setting out the grounds of appeal."
- “In the present case, the Board considers these four conditions [of J10/87] fulfilled: - at most, the first letter filed on 29 November 2021 had been available for file inspection for a very short time without the second letter filed on the same day being also available in this manner; ...”
- "Based on these considerations, the Board allows the correction of the error under Rule 139(1) EPC, i.e. the retraction of the withdrawal of the appeal. Such a correction has retroactive effect, with the consequence that the document containing the error has to be regarded as if it was filed in the corrected form (ab initio effect, as explained in J 0019/03, Reasons 3.). "
- The Board deals further with inventive step of the claims according to AR-4, these claims being the ones found allowable by the Examining Division.
- Petition for review R3/22 concerning unrelated case T0695/18 (application 11865564.6) also deals with a retraction of a withdrawal of an appeal. In that case, the appeal was terminated without a decision after the withdrawal of the appeal. The retraction of the withdrawal (filed one day later) was handled by the Board [in fact the Registrar it seems, see here] in a quite different way than in the present case. However, I refrain from comments on R3/22 as the case is pending.
- The EPO sent out a reminder for a renewal fee in the course of the petition for review proceedings R3/22 which also remarkable, in view of R.51(5).
EPO T 2148/18
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/03/t-214818-successful-retraction.html
