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9.3. Appeal deemed not to have been filed or inadmissible appeal

Overview

9.3. Appeal deemed not to have been filed or inadmissible appeal

You are viewing the 9th edition (2019) of this publication; for the 10th edition (2022) see here

For the issue of reimbursement of the appeal fee the distinction between an appeal not deemed to have been filed and an inadmissible appeal is relevant. When the appeal is deemed not to have been filed the appeal fee must be reimbursed since the purpose of this fee cannot be achieved. On the contrary, when an appeal is inadmissible it is in principle not possible to repay the appeal fee (T 445/98).

G 1/18

1. Le recours est réputé non formé dans les cas suivants :

a) lorsque l'acte de recours est déposé dans le délai de deux mois tel que prévu à l'article 108, première phrase CBE ET que la taxe de recours a été acquittée après l'expiration dudit délai de deux mois ;

b) lorsque l'acte de recours est déposé après le délai de deux mois tel que prévu à l'article 108, première phrase CBE ET que la taxe de recours a été acquittée après l'expiration dudit délai de deux mois ;

c) lorsque la taxe de recours a été acquittée dans le délai de deux mois tel que prévu à l'article 108, première phrase CBE pour le dépôt de l'acte de recours ET que l'acte de recours a été déposé après l'expiration dudit délai de deux mois.

2. Pour les réponses 1a) à 1c), le remboursement de la taxe de recours est ordonné d'office.

3. Lorsque la taxe de recours a été acquittée dans ou après le délai de deux mois tel que prévu à l'article 108, première phrase CBE pour le dépôt de l'acte de recours ET que l'acte de recours n'a pas été déposé, la taxe de recours est remboursée.

Case law 2019

In G 1/18 (OJ EPO 2020, A26) the Enlarged Board first considered that the question referred should be read as follows: "If notice of appeal is filed and/or the appeal fee is paid after expiry of the two-month time limit under Art. 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed?" The President of the EPO wrote that the requirements of Art. 112(1)(b) EPC had been met. As evidence of different decisions, the referral cited T 1897/17 as representing the "minority" view in the case law that the appeal is inadmissible and T 1325/15 and T 2406/16 as representing the "majority" view in the case law that the appeal is deemed not to have been filed. The President of the EPO added that the answer "is certain to have an impact on the practice of the Office's departments of first instance", several EPC provisions having similar wording. The Enlarged Board held that there were three possible scenarios: - Scenario 1: the appeal was filed within the prescribed two-month time limit AND the appeal fee was paid AFTER expiry of that two-month time limit. - Scenario 2: the appeal was filed AFTER expiry of the two-month time limit AND the appeal fee was paid AFTER expiry of that two-month time limit. - Scenario 3: the appeal fee was paid within the prescribed two-month time limit AND the appeal was filed AFTER expiry of that two-month time limit. The Enlarged Board examined many decisions which constituted the so-called "majority" view in the case law in all three scenarios. Concerning the "minority" view in the case law, the boards had held in only 15 decisions that the appeal had to be rejected as inadmissible. The Enlarged Board had reached that conclusion in only one decision (R 2/10). The Enlarged Board held that the EPC had to be interpreted in accordance with the rules laid down in the Vienna Convention concluded in 1969 (see in particular Art. 31 and 32). The consequence "the appeal is deemed withdrawn" has certainly not been laid down expressly in Art. 108 EPC. However, an analysis of the travaux préparatoires relating to R. 69 EPC 1973 (now R. 112(1) EPC) shows that the legislator did intend to stipulate there expressly the legal consequence that notice of appeal is deemed not to have been filed in that it grouped together in that single, generally worded provision all legal situations involving a loss of rights. The Enlarged Board of Appeal concluded that, whatever the scenario at issue, the "majority" view in the boards' case law was applicable and the "minority" view was no longer to be applied. The point of law referred to the Enlarged Board of Appeal by the EPO President was answered as follows: 1. An appeal is deemed not to have been filed in the following cases: (a) where notice of appeal was filed within the two-month time limit prescribed in Art. 108, first sentence, EPC AND the appeal fee was paid after expiry of that two-month time limit; (b) where notice of appeal was filed after expiry of the two-month time limit prescribed in Art. 108, first sentence, EPC AND the appeal fee was paid after expiry of that two-month time limit; (c) where the appeal fee was paid within the two-month time limit prescribed in Art. 108, first sentence, EPC for filing notice of appeal AND notice of appeal was filed after expiry of that two-month time limit. 2. In the cases referred to in answers 1(a) to (c), reimbursement of the appeal fee is to be ordered ex officio. 3. Where the appeal fee was paid within or after the two-month time limit prescribed in Art. 108, first sentence, EPC for filing notice of appeal AND no notice of appeal was filed at all, the appeal fee is to be reimbursed.

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