T 2264/18 - Withdrawing application after oral proceedings

 Key points

• In this examination appeal, the Board decided to reject the appeal during the oral proceedings. A few days later but before the decision is issued in writing, the applicant withdraws the application.
• “Given that by virtue of the board's decision [announced at the oral proceedings] the refusal became final and no appeal lies from decisions of the boards, the appellant's submission made after the announcement of the board's decision is without any legal effect.”
• “a statement of withdrawal of the application made by the (sole) appellant after the final decision of the board has been announced at oral proceedings does not relieve the board of its duty to issue and notify to the appellant the decision in writing setting out the reasons for the decision ”
• “Since the withdrawal is without any legal effect and the written decision has to be issued, the appellant is not entitled to the reimbursement of the appeal fee at 25% under Rule 103(4)(b) EPC.”

T 2264/18 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t182264eu1.html

Reasons for the Decision

Procedural matters

1. The appellant stated by a letter dated 4 May 2021 that the application was withdrawn "unconditionally". However, since the decision had been announced at the oral proceedings held on 17 March 2021 and thereby became effective on that day, the appeal proceedings are terminated (T 843/91 of 17 March 1993, OJ EPO, 1994, 818, point 10 of the reasons). Given that by virtue of the board's decision the refusal became final and no appeal lies from decisions of the boards, the appellant's submission made after the announcement of the board's decision is without any legal effect.

Furthermore, a statement of withdrawal of the application made by the (sole) appellant after the final decision of the board has been announced at oral proceedings does not relieve the board of its duty to issue and notify to the appellant the decision in writing setting out the reasons for the decision (T 1033/04, point 3 of the reasons; T 1518/11, point 2 of the reasons).

Since the withdrawal is without any legal effect and the written decision has to be issued, the appellant is not entitled to the reimbursement of the appeal fee at 25% under Rule 103(4)(b) EPC.