What is the latest date by which a European patent application can be withdrawn if the applicant wants to be sure that publication will be prevented?
Will the EPO accept a conditional withdrawal when the condition is that the application should not be withdrawn in the event that the publication can no longer be stopped?
Proposed reply
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The European patent application is not published if the EPO has received the withdrawn before the termination of the technical preparations for publication (R67(2) EPC).
Preparations for publication are deemed completed at end of the day that falls 5 weeks before the expiry of the 18 month period (R 67(1) EPC and Decision of the President of the EPO of 12.07.07 OJ speciation edition 3 D.1).
After that day, the EPO will try to prevent publication. It is usually possible to prevent publication if the withdrawn declaration is received by the EPO at least two weeks before the scheduled date of publication (Notice from the EPO dated 25 April 2006 concerning the withdrawal of the application to prevent publication).
The EPO will accept a conditional withdrawal if the applicant makes the withdrawal subject to the proviso that the application not be published in accordance to Art 93 EPC (Notice from the EPO dated 25 April 2006 concerning the withdrawal of the application to prevent publication).
If the EPO finds that the publication of the application can no longer be stopped, it informs the applicant accordingly and tells him that the declaration of withdrawal is no longer valid and that the procedure will continue.
If the applicant no longer wishes to pursue the application, he must withdraw it again unconditionally.
This proposed reply is not a legal opinion and does not engage the responsibility of Cabinet Novitech and should not replace the consultation of a Patent Attorney.
For any questions concerning the EP or FR patent law you can contact the Cabinet Novitech:
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