2.2.3 Payment of opposition fee

In the case underlying T 1000/19 the opponent's representatives mentioned in their letter accompanying the notice of opposition (filed two days before expiry of the opposition period) that they authorised the responsible EPO department to debit the opposition fee from their deposit account. However, they failed to indicate the payment method in box X of electronic EPO Form 2300E. The opposition division held that the opposition was deemed not to have been filed (Art. 99(1) EPC). The board first observed that it was highly questionable whether the case law (e.g. T 1265/10, T 152/82, OJ 1987, 191, and T 806/99) according to which, under certain circumstances, the "intention to pay" a fee by debit order could still be regarded as a valid payment, even if the debit order was deficient, still applied under the version of the ADA in force since 1 December 2017. However, neither this legal question nor the question whether the principle of legitimate expectations applied needed to be decided in the case in hand, as the board considered that R. 139 EPC was applicable and that its requirements were complied with. The opposition division's view that R. 139 EPC was not "time-barred" and could therefore not be applied to the non-extendable time limit for filing an opposition was rejected by the board as legally incorrect. The board referred to G 1/12 (OJ 2014, A114), in which the Enlarged Board had found that the procedure for correcting errors under R. 139, first sentence, EPC was available in cases of an error in the appellant's name in a notice of appeal. The board noted that the issue whether a notice of appeal contained the name and address of the appellant was inextricably related to the question whether the appeal had been validly filed within the time limit under Art. 108, first sentence, EPC. There could be no doubt that the ratio of G 1/12 also applied if the admissibility of an opposition, or the question whether an opposition was deemed to have been filed, was concerned (T 615/14, T 579/16). Furthermore, the board saw no reason why the lines of reasoning set out in G 1/12 regarding the applicability of R. 139 EPC should not equally apply to a correction of incorrectly filled-in payment form (see T 317/19). Rather, the applicability of R. 139 EPC to debit orders had been acknowledged or at least not ruled out by the boards of appeal (T 152/82, T 17/83 of 20 September 1983). The board noted, with reference to T 152/85, that R. 139 EPC only applied to a mistake made in a document, not to a factual mistake. Here, the opponent had filed EPO Form 2300E and hence a document within the meaning of R. 139, first sentence, EPC; the mistake in the document was that the payment method was not activated. The board was also satisfied that the requirements for corrections under R. 139, first sentence, EPC as referred to in G 1/12 were fulfilled.