9.7. Reimbursement must be equitable

In T 613/14 the appellant (patent proprietor) withdrew its appeal but maintained its request for reimbursement of the appeal fee on the ground that it had filed the appeal based on misleading information provided by the opposition division, thus invoking the principle of protection of legitimate expectations. The issue to be decided was whether the statement by the opposition division that the rejection of the appellant's request to correct the decision to revoke European patent EP 1 730 151 and the minutes of the oral proceedings before the opposition division on 19 September 2013 constituted a decision open to appeal created a legitimate expectation that an appeal would be found admissible and examined as to its substance. In contrast to a request for correction of the minutes or the decision to grant, the board stated that there was no established case law on the issue of whether or not the rejection of a request for correction of a decision under R. 140 EPC was open to appeal. It found therefore that it could not be ruled out, and that it was even likely, that the appellant had relied on the opposition division's statement when filing the appeal. The board considered the opposition division's statement to have created a legitimate expectation that an appeal would be found admissible and examined as to its substance, at least in respect of the request for correction of the decision. However, in its preliminary opinion, the board took the position that the appeal against the opposition division's refusal of the request to correct its decision was not admissible. The board held that it had thus deprived the appellant of its legitimate expectations. After the board had maintained its preliminary opinion during the oral proceedings, the appellant withdrew its appeal. Under these circumstances, the board considered it justified to order the reimbursement of the appeal fee.