The mere fact that a representative had filed a notice of appeal before taking note of the appellant's adverse instruction did not justify a correction to the effect that no appeal had been filed. The request amounted to a withdrawal of the appeal with retrospective effect, which was not provided for in the EPC (T 309/03, OJ 2004, 91).

If the sole appellant says he has withdrawn his appeal, but the parties are in dispute as to whether he did so admissibly, then the board is empowered to rule on that issue (T 659/92, OJ 1995, 519).

Under Art. 114(1) EPC the EPO shall examine the facts of its own motion in proceedings before it. The question has arisen whether this is relevant in the event of the withdrawal of the appeal.