Legal framework
An applicant may withdraw a European patent application at any time as long as the application is pending. This is stated in Guidelines E-VIII, 8.1, subject to the special situation where third-party entitlement proceedings under Rule 14 EPC have been proven to the EPO.
For the end of pendency, the Guidelines state that an application is pending up to, but not on, the date on which the European Patent Bulletin mentions the grant of the patent: Guidelines A-IV, 1.1.1, referring to OJ EPO 2002, 112.
This is consistent with Article 97(3) EPC, according to which the decision to grant takes effect on the date on which the mention of grant is published in the European Patent Bulletin.
Statement a)
False.
The communication under Rule 71(3) EPC informs the applicant of the text in which the examining division intends to grant the patent. It is not the last point at which the application can be withdrawn.
After receiving the Rule 71(3) communication, the application is still pending. It can still be withdrawn later, provided the withdrawal reaches the EPO before the application ceases to be pending.
Statement b)
False.
Payment of the fee for grant and publishing and filing of the claim translations do not themselves end the pendency of the European patent application.
Those acts normally indicate approval of the text intended for grant, but the decision to grant has not yet taken effect. The grant takes effect only on the date on which the mention of grant is published in the European Patent Bulletin: Article 97(3) EPC.
Statement c)
False.
The date of publication of the mention of grant is already too late for withdrawal of the European patent application.
The application is pending only up to, but not on, that date. On the publication date itself, the decision to grant takes effect and there is no longer a pending European patent application to withdraw. See Guidelines A-IV, 1.1.1 and Article 97(3) EPC.
Statement d)
True.
The latest possible time for an effective withdrawal is one day before the date on which the European Patent Bulletin mentions the grant.
That is the last day on which the application is still pending. On the date of mention of grant itself, the application is no longer pending and the patent has been granted. See Guidelines E-VIII, 8.1 and A-IV, 1.1.1.
Exam tip
For withdrawal, divisional filings and similar questions, remember the phrase: pending up to, but not on, the date of mention of grant. The Rule 71(3) stage and the payment/translation acts are not the endpoint. The decisive date is publication of the mention of grant in the European Patent Bulletin.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.