2.5. Form and time limit of appeal

In the cases reported below, the appellants had paid only the reduced appeal fee within the time limit for appeal, despite the criteria for a reduction not being met or being disputed. The question was thus whether the appeals were to be deemed not to have been filed for failure to pay the required amount of the appeal fee (Art. 108, sentence 2, EPC; G 1/18, OJ 2020, A26). Under Art. 1(4) of the decision of the Administrative Council of 13 December 2017 amending Articles 2 and 14 RFees (CA/D 17/17, OJ 2018, A4), Art. 2(1), item 11, RFees was reworded to provide that the persons and entities listed in R. 6(4) and (5) EPC (small and medium-sized enterprises, natural persons or non-profit organisations, universities or public research organisations) need only pay a reduced appeal fee (EUR 1 880) rather than the full fee. The notice from the EPO dated 18 December 2017 (OJ 2018, A5) contains further details on claiming entitlement to the reduced appeal fee. Its point 3 stipulates that appellants wishing to benefit from the reduced fee for appeal must expressly declare that they are a natural person or an entity covered by R. 6(4) EPC. Under point 4, the declaration must be filed at the latest by the time of payment of the reduced fee for appeal. Point 11 states that if the reduced fee is paid but no declaration is submitted, the notice of appeal may be deemed not to have been filed or the appeal may be considered inadmissible.

In T 1060/19 the board noted that Council Decision CA/D 17/17 did not require a declaration according to points 3 and 4 of the Notice. The board nevertheless assumed arguendo that the provisions of the Notice that were pertinent to the case in hand were binding. The board observed that points 3 and 4 of the Notice did not merely interpret decision CA/D 17/17 of the Administrative Council, but imposed additional duties, i.e. in particular an express declaration. The board specified that from point 11 of the Notice it followed that point 4 must be read as meaning that "it is strongly recommended that" the declaration be filed together with the payment. If not, there would be a deficiency which, however, would be amenable to being remedied by supplying the declaration by the end of the two-month appeal period. The board stated that the declaration of entitlement to benefit from a reduced fee for appeal mentioned in the Notice from the EPO (OJ 2018, A5) could be filed until the end of the appeal period, despite the wording of point 4, last sentence, of the Notice, which must be reconciled with the meaning of point 11 of the Notice.

In T 225/19, the board followed decision T 1060/19, in which it was held that there was no legal basis for determining whether the fiction of non-filing applied to an appeal for which a reduced appeal fee had been paid according to whether or not a declaration complying with points 3 and 4 of the notice had been submitted. Council decision CA/D 17/17 and the resultant new version of Art. 2(1), item 11, RFees did not contain any legal foundation for the declaration required under points 3 and 4 of the Notice. The notice did not just interpret and elaborate on Council decision CA/D 17/17; it also established the additional requirement of a declaration to be submitted with the fee payment – a requirement devoid of any basis in law. An EPO notice at any rate was an administrative measure and as such could not constitute the requisite legal basis on its own. The boards were bound solely by the statutory provisions, not by EPO notices concerning the application or interpretation of those provisions (J 8/18, Art. 23(3) EPC). This meant at the very least that a declaration under points 3 and 4 of the notice could not already be demanded on payment of the reduced appeal fee. The boards were anyway empowered and obliged to examine whether an appeal was admissible and had been duly filed throughout the appeal proceedings, and so even after the time limit for appeal had elapsed. This power also encompassed examining whether an appellant that had paid the reduced appeal fee pursuant to Art. 2(1), item 11, RFees satisfied the requirements under R. 6(4) EPC. The boards were especially called on to examine this when other parties to the proceedings disputed that those requirements were met. The boards' general practice in this respect was to accept a declaration and supporting evidence of compliance with the requirements under R. 6(4) EPC even after the time limit for appeal had elapsed and the appeal proceedings were under way (see T 3023/18).

In T 3023/18 notice of appeal was filed in the name of Borealis AG, and the reduced appeal fee paid, on the last day for doing so. In its first communication, the board invited the appellant to file the hitherto missing declaration necessary for the fee reduction. The appellant thereupon confirmed that it was not entitled to the reduced fee, stating that this was evident from the notice of appeal since it had not filed a declaration of entitlement, which according to paragraph 4 of the EPO Notice (OJ 2018, A5) should be filed at the same time. There was nothing in the file to indicate that it intended to take advantage of the reduced fee. In addition, Borealis AG was an appellant and patentee familiar to the EPO and a known large entity. Thus, it argued there was an obvious error and its intention to pay the full fee was clear. The EPO should have deducted the full amount. The board pointed out that the non-filing of the required declaration was not evidence of a clear intention by the appellant to pay the full appeal fee: it could also be a mistake, as well as an indication that the appellant did not consider itself entitled to pay the reduced fee. The board also noted the practice of the boards of appeal of accepting such declarations at any time during the appeal proceedings (T 1222/19). R. 6(6) EPC made the appellant responsible for assessing whether it was eligible for the reduced fee. This assessment was not straightforward. It was carried out on the basis of Commission recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises. The onus was thus clearly with the appellant to assess its own entitlement. The EPO has no duty to carry out any ex officio enquiry to determine entitlement. In the light of the above, the board did not accept that it was possible to establish that the appellant's intention was to pay the full appeal fee. The appeal was deemed not to have been filed and the board ordered reimbursement of both fee amounts (G 1/18, OJ 2020, A26).

In T 2620/18, the appellant relied on T 152/82 and the EPO practice of correcting underpayments in debit orders of its own motion and debiting the correct, full amount where the payer's payment intention is clear. It contended that, in line with this practice, the EPO should have debited the full appeal fee in time and, therefore, the fee should be deemed to have been paid by the deadline. In the board's opinion, this EPO practice was not readily applicable to a differentiated fee structure like that of appeal fees. If the debit order explicitly stated the intention to pay the reduced appeal fee, the EPO could not reasonably assume of its own accord that the payer actually wanted to pay the full fee. Moreover, not filing a declaration under R. 6(6) EPC was not an unambiguous indication of an intention to pay the full fee: not doing so could be down to a simple oversight, or the intention might be to file one at a later date. The reference to "official appeal fee (EUR 1 880.00)" in the notice of appeal did not make any difference either; the very point was that the stated amount was one of the valid appeal fees and matched the one specified in the (electronic) debit order. The board thus held that the EPO had been right to debit only the reduced appeal fee. The board interpreted the appellant's submissions in its statement of grounds of appeal as amounting in substance to a request for correction of the debit order and considered it credible that the appellant had indeed presumed it had paid the full appeal fee. However, it found that this request for correction had not been filed without delay (criterion (d) in the list in G 1/12, OJ 2014, A114, point 37 of the Reasons). Merely submitting another debit order did not, in its view, amount to an implied request for correction (R. 139 EPC). The request in the statement of grounds had not been filed until six weeks after the mistake had been discovered. The appellant argued that this had been down to the need for it and its representative to first clarify the situation but, according to the board, that did not justify such late filing. Nor could the appellant rely on the principle of the protection of legitimate expectations because, in the case in hand, the board had not been under any duty to warn the appellant of the risk of a loss of rights and such a warning – assuming the appellant would then have dealt with the situation in the same way – would ultimately not have led it to file its request any sooner.

In decisions T 2620/18 and T 3023/18, the difference between the amount paid and the full appeal fee was not considered to be small. It could reasonably be assumed that, in introducing the reduced appeal fee, the legislator had not been simply looking to provide a marginal, as it were symbolic fee reduction for natural persons and small and medium-sized enterprises.

In T 317/19 the appellant filed the notice of appeal within the two-month time limit; it contained the following sentence: "We are paying the appeal fee from our deposit account of the attached fee sheet." However, due to an error in the "Method of payment" box on Form 1038E (the box did not indicate a method but stated "not specified"), the debit order for the payment of the appeal fee was not carried out before expiry of that time limit. Following the opinion G 1/18 (OJ EPO 2020, A26) this resulted in the appeal being deemed not to have been filed. To change the above result, the appellant filed a request for correction under R. 139 EPC. The board referred to G 1/12 (OJ EPO 2014, A114) where the Enlarged Board affirmed that a correction of errors under R. 139 EPC in documents filed with the EPO is generally applied. The board was aware that the Enlarged Board had made its findings only in the context of the correction of an error in the appellant's name. However, the board failed to see why it should not equally apply to a correction of an erroneously filled payment form. In the case in hand the appellant met the requirements for a correction under R. 139 EPC as summarised in G 1/12. The appellant originally intended to pay the appeal fee via Form 1038E. This was also immediately apparent. Furthermore, the error to be remedied was an incorrect statement in a document filed with the EPO, namely the wrong indication in the "Method of payment" box on Form 1038E. Finally, the appellant filed its request under R. 139 EPC only nine days after the examining division's communication which had hinted at the fact that the payment of the appeal fee had not been carried out. The board concluded that the requirements for the correction were met. As a consequence, the appeal was retroactively deemed to have been filed. Thus, an error in a duly filed form for paying the appeal fee may be corrected under R. 139, first sentence, EPC.