T 1516/11 - Withdrawal after decision

EPO T 1516/11

For the decision, click here.

Key point

• The Board: " The Appellant's fax with the intended withdrawal of the application was received by the EPO [at 11:20] after the announcement of the Board's decision to dismiss the appeal [at 09:10]. Accordingly, the withdrawal has no effect on the present decision finally refusing the application, which took effect with its announcement." 

Summary of Facts and Submissions

I. The appeal lies from the decision of the Examining Division refusing European patent application No. 07 719 328.2 with the International publication Number WO-A-2007/134419.

[...]

V. On 24 June 2015, the Appellant advised the Registrar of the Board by telephone that it will not be represented at the oral proceeding scheduled on 25 June 2015.

VI. The Appellant requested in writing that the decision under appeal be set aside and that a patent be granted on the basis of claim 1 to 9 filed with the statement of the grounds of appeal dated 28 June 2011. He also requested that the case be remitted to the Examining Division for further prosecution.

VII. The oral proceedings before the Board took place on 25 June 2015 in the absence of the duly summoned Appellant. At the end of the oral proceeding, namely at 09:10, the decision of the Board was announced.

VIII. With a fax dated 24 June 2015, but received by the EPO on 25 June 2015 at 11:22 the Appellant declared that he withdrew its application.

Reasons for the Decision

1. The appeal is admissible.

2. Procedural matters

The Appellant's fax with the intended withdrawal of the application was received by the EPO after the announcement of the Board's decision to dismiss the appeal. Accordingly, the withdrawal has no effect on the present decision finally refusing the application, which took effect with its announcement.

3. Amendments (Article 123(2) EPC)

[...] Therefore, claim 1 has been amended such as it extends beyond the content of the application as filed, contrary to the requirement of Article 123(2) EPC.

Already, for this reason the sole request presented by the Appellant must be refused.

Order

For these reasons it is decided that:

The appeal is dismissed.