T 1382/04: Request for oral proceedings sufficient for pendency of application

Rule 100 EPC , relating to Appeal proceedings is as follows:
(1) ...
(2) In the examination of the appeal, the Board of Appeal shall invite the parties, as often as necessary, to file observations, within a period to be specified, on communications issued by itself or observations submitted by another party.
(3) If the applicant fails to reply in due time to an invitation under paragraph 2, the European patent application shall be deemed to be withdrawn, unless the decision impugned was taken by the Legal Division.

In this case the applicant appealed against the decision of the Examining Division refusing his application. The board issued a communication under Rule 100(2). Failure to reply to such an invitation would result in deemed withdrawal according to Rule 100(3). The application replied by merely requesting oral proceedings, hence the Board considered the question whether or not the request (which was filed in due time) met the requirements of Rule 100(2). The Board reasoned as follows:

Reason 1.1: Historically, the legal instrument of a deemed withdrawal was introduced for administrative reasons as a means to save resources of patent offices and courts in cases where the applicant or appellant has clearly lost its interest in prosecuting an application [..]


Reason 1.2 : In the present case, the Board considers the request for oral proceedings which was received within the time limit for filing observations as a reply avoiding a deemed withdrawal under Rule 100(3) EPC since it cannot be assumed that the appellant has lost his interest in the application while requesting oral proceedings at the same time, apparently with a view to present his comments on the Board's arguments orally.

Thus, the Board concurs with a corresponding finding in decision T 861/03 (point 6.2 of the reasons).

Read the decision here.