The legal consequences of these two sanctions differ significantly (even though, in the end, there is no longer a patent application).
There is no strict rule to determine when an application is « refused » by the EPO or « deemed withdrawn » by the proprietor. It is therefore necessary to examine each case individually, as prescribed by the EPC.
Refused application
Reasoning
When an application is refused, the EPO must issue a reasoned decision (R111(2) EPC) explaining the grounds for refusal (e.g., failure to submit documents, insufficient arguments, etc.).
Appeal
This decision is subject to appeal (A106 EPC).
If the proprietor appeals the refusal decision, the Board of Appeal must examine whether the irregularities have been corrected. Thus, the applicant may overcome the grounds for refusal during the appeal, for example, by amending the application or submitting missing documents (J18/08).
Pending status and suspensive effect
The application remains pending:
- until the end of the appeal period if no appeal is filed (G1/09), or
- until the end of the appeal if an appeal is validly filed due to its suspensive effect.
In principle, only admissible appeals have a suspensive effect (J28/03).
In particular, the appeal suspends the entry in the European Patent Register, publication in the European Patent Bulletin, or the publication of the patent specification (EPC Guidelines E-X 1).
Deemed-withdrawn application
Simple finding
When the EPO considers that the application is deemed withdrawn by the applicant, there is no EPO decision at this stage.
A decision may be requested (R112(2) EPC) if the applicant believes the EPO has made an error (e.g., a document is considered missing when it was actually submitted).
An appeal may then be filed against this decision.
No suspensive effect of the appeal
However, unlike the previous case, the applicant cannot attempt to perform the omitted acts within the time limits to counter the EPO’s finding of deemed withdrawal during the appeal.
In this context, the Board of Appeal merely examines whether the loss of rights was justified. The appeal will only succeed if the act was indeed performed within the time limits.
The application is considered pending until the expiration of the unobserved time limit, i.e., the first time limit (J4/86): the date of notification of the loss of rights is irrelevant.
Application not pending
Requesting a decision under R112(2) EPC or appealing that decision does not maintain the application’s pending status (J1/05).
Filing a restitutio in integrum does not maintain the application’s pending status if the request is subsequently refused (J4/11).