The legal consequences between these two sanctions are quite different (even if at the end, there is no more patent application).
There is no real rule as to when an application is rather "rejected" by the EPO or rather "deemed withdrawn" by the holder. It is therefore necessary to look on a case-by-case basis, as prescribed by the EPC.
When an application is rejected, the EPO must give a reasoned decision (R111 (2) EPC) explaining the reason for its rejection (eg non-provision of parts, insufficient arguments, etc.).
This decision is subject to appeal (A106 EPC).
If the holder lodges an appeal against the rejection decision, the Board of Appeal must examine whether the irregularities have been corrected or not: thus, it will be possible for the applicant to overcome the reasons for the rejection during the appeal, for example by amending his application. , providing missing pieces, etc. (J18 / 08).
Instance and suspensive effect
The request is pending:
- until the end of the appeal period, if no appeal is lodged (G1 / 09) or
- until the end of the appeal if an appeal is validly made because of the suspensive effect of the appeal.
A priori, only the remedies admissible have a suspensive effect (D28 / 03).
In particular, recourse suspends the registration in the BWR or the publication in the BEB or the publication of the patent specification (EX Directives 1).
Deemed application withdrawn
In the event that the EPO considers that the application is deemed withdrawn by the applicant, there is no decision of the EPO at this stage.
It is possible to request a decision (R112 (2) EPC) if the applicant considers that the EPO has made a mistake (eg a document is considered missing when it has been sent).
An appeal is then possible against this decision.
No suspensive effect of the appeal
However, unlike in the previous case, the applicant can not seek to perform acts not completed within the time limits in order to thwart the finding of the EPO's fictitious withdrawal of the application during the appeal.
In this context, the Board of Appeal merely examines whether the loss of rights was justified or not. The appeal will only be founded if the act had actually been completed in time.
The application is considered pending until the expiry of the period in question not observed, ie the first period (J4 / 86): the date of notification of the loss of rights does not matter.
Application not pending
Presenting a restitutio in integrum does not allow to keep the request pending if this request is subsequently refused (J4 / 11).