In this examination appeal the appellant withdrew the appeal … too late.
[2.1] After the board had announced its decision to dismiss the appeal against the refusal of the application in suit and closed the oral proceedings (OPs), the appellant stated by letter dated 23 August 2013 that the appeal was withdrawn. However, since the decision had been announced at the OPs held on 13 August 2013 and thereby became effective on that day, the appeal proceedings are terminated (T 843/91 ). 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.
[2.2] Furthermore, a statement of withdrawal of appeal made by the (sole) appellant after the final decision of the board has been announced at OPs 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 ).
The booklet “Overview of the appeal proceedings according to the EPC” by Meinders, Beckedorf and Weiss – which I find very useful – has an interesting passage on withdrawals in the course of appeal proceedings (p. 48):
“… Another situation which may make withdrawing the appeal an interesting option for an appealing applicant/patent proprietor is when the Board has issued a summons with a preliminary opinion making clear that the appeal has little chance of success. If they are the sole appellant, withdrawing the appeal at that stage will lead to immediate termination of the appeal proceedings (except where a decision on the apportionment of costs in opposition-appeal proceedings is necessary), with no written reasoned decision being issued. Thus, negative effects elsewhere for family members of the application or patent may be avoided. This is the principle of party disposition in appeal, i.e. the party determines whether, what and to what extent it is appealed and how the appeal proceedings are pursued.Such a situation may even arise as late as at oral proceedings before the Board. However, in that case the withdrawal of the appeal must take place before the Board has announced the decision. In written proceedings, such a withdrawal has to take place before the Board has delivered its decision to the internal post, i.e. the party should enquire with the Registry of the Board about the status of the case.” (my emphasis)
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