T 0727/10 - Withdrawal opposition

Key points

• The Board applies established case law that in case the sole opponent and the proprietor both appeal, and the opponent withdraws both the opposition and the appeal, the appeal proceedings are continued. The former opponent is no longer party to the appeal (in respect of the substantive issues). 
• The Board carries out examination of own motion of the proprietor's requests. None are allowable and the appeal is dismissed. As a comment, the patent is accordingly maintained in amended form according to the impugned decision of the OD.

EPO T 0727/10 - link

Reasons for the Decision

1. The appeal is admissible.

2. Withdrawal of the appeal and of the opposition by the opponent

2.1 During appeal, the sole opponent withdrew both its opposition and its appeal. Hence the patent proprietor became the sole appellant and sole remaining party to the proceedings.

2.1.1 According to decision G 9/92 of the Enlarged Board of Appeal (OJ 1994, 875), if the patent proprietor is the sole appellant against an interlocutory decision maintaining a patent in amended form, the maintenance of the patent as amended in accordance with the interlocutory decision may not be challenged at appeal proceedings (prohibition of reformatio in peius).

2.1.2 As regards the withdrawal of the opposition by the opponent who is not the sole appellant, this does not affect the appeal proceedings, in so far as it is the principal task of the boards of appeal to review the decision under appeal on the basis of the appellant's requests. However, the withdrawal of an opposition by the respondent means that the respondent ceases to be party to the appeal proceedings in respect of the substantive issues (T 789/89, OJ 1994, 482). The board may nevertheless take into account the submissions and evidence filed by the former opponent before the opposition was withdrawn (T 629/90, OJ 1992, 654).