9.8. Withdrawal of appeal
9.8.2 Withdrawal of appeal under Rule 103(2) EPC
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According to R. 103(2) EPC, as amended on 13 December 2013 (CA/D 16/13; OJ 2014, A3), the appeal fee is reimbursed at 50% if the appeal is withdrawn after expiry of the period under R. 103(1)(b) EPC and certain conditions are met (see in this chapter V.A.9.1.). These rules apply to appeals pending at their entry into force, i.e. on 1 April 2014, and to appeals filed thereafter. In T 1086/09 the board held that a letter received on 28 March 2014 stating that the appeal should be withdrawn "hereby" would mean that the appeal was withdrawn on 28 March 2014, and thus no longer pending on 1 April 2014. In T 370/11 the board held that the 50% was to be calculated on the basis of the appeal fee actually paid, and not on the basis of the rate of the appeal fee applicable on the date of withdrawal or reimbursement.
In T 1402/13 of 31 May 2016 date: 2016-05-31, the board stated that under R. 103(1)(b) EPC and R. 103(2) EPC the termination of appeal proceedings caused by a loss of rights due to the non-payment of renewal fees could not be equated to a declaration of withdrawal of the appeal. This result was also supported by the travaux préparatoires (CA/90/13 Rev. 1), which explicitly required the appellant to make a procedural declaration. In order to claim entitlement to reimbursement under R. 103(2) EPC, the appellant was required, at a time when its application was still pending, to make a procedural declaration that left no doubt that withdrawal of the appeal was intended. As this was not the case, the request for reimbursement of the appeal fee was rejected.
In T 265/14 the appeal had been withdrawn after expiry of the period set by the board in a first communication inviting the party to file observations under R. 100(2) EPC but before expiry of the period set in a second communication. The board held that R. 103(2)(b) EPC was not to be interpreted as definitively ruling out reimbursement of 50% of the appeal fee where no observations were filed within the period set under R. 100(2) EPC. If a board then set a new period for filing observations, it thereby gave the appellant a fresh opportunity to withdraw the appeal, with the effect of reducing the fee, within that period. So the board concluded that issuing a second invitation under R. 100(2) EPC was to be treated as equivalent to setting a date for oral proceedings after expiry of the period set in the first invitation, which likewise reopened the possibility of the reimbursement of the appeal fee under R. 103(2)(a) EPC. That reimbursement was possible in those circumstances supported the view that R. 103(2) EPC as a whole was to be interpreted broadly in the light of its object and purpose and that both its scenarios could be treated in the same way.
- T 2044/16
Einer Rückzahlung nach Regel 103(4)(c) EPÜ steht nicht entgegen, dass die Kammer bereits zu einem früheren Zeitpunkt einen ausführlicheren Vorbereitungsbescheid gemäß Artikel 15(1) VOBK 2020 erlassen hatte. Die Frist nach Regel 103(4)(c) EPÜ wird durch jede weitere vorbereitende Mitteilung der Kammer erneut ausgelöst, auch wenn diese im wesentlichen organisatorischen Inhalt hat und erst einen Monat vor der mündlichen Verhandlung ergeht. Die zum Rückzahlungstatbestand der Regel 103(2)(b) EPÜ (nun Regel 103(3)(b) EPÜ) in T 265/14 diskutierten Erwägungen sind auch auf die vorliegende Fallkonstellation übertragbar. Entscheidend ist der mit der Regelung beabsichtigte Arbeitszeitgewinn, der durch die auf die Mitteilung erklärte Antragsrücknahme und die dadurch ermöglichte effiziente Verfahrensbeendigung im schriftlichen Verfahren erreicht wird. (siehe Gründe, Ziffern 5 bis 5.6)
- Case law 2019
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In T 265/14 the appeal had been withdrawn after expiry of the period set by the board in a first communication inviting the party to file observations under R. 100(2) EPC but before expiry of the period set in a second communication. The board held that R. 103(2)(b) EPC was not to be interpreted as definitively ruling out reimbursement of 50% of the appeal fee where no observations were filed within the period set under R. 100(2) EPC. If a board then set a new period for filing observations, it thereby gave the appellant a fresh opportunity to withdraw the appeal, with the effect of reducing the fee, within that period. So the board concluded that issuing a second invitation under R. 100(2) EPC was to be treated as equivalent to setting a date for oral proceedings after expiry of the period set in the first invitation, which likewise reopened the possibility of the reimbursement of the appeal fee under R. 103(2)(a) EPC. That reimbursement was possible in those circumstances supported the view that R. 103(2) EPC as a whole was to be interpreted broadly in the light of its object and purpose and that both its scenarios could be treated in the same way.
In T 683/14 the examining division had implemented its erroneous position that the confidentiality document submitted on 1 August 2013 could not be taken into account because the debate had been closed and a "decision" had been taken during the oral proceedings of 10 December 2012. The board stated that the examining division had erred in two respects. Firstly, the oral proceedings were not terminated by a formal decision. Secondly, even if the debate had been formally closed, it could have been reopened. The board cited T 595/90: "Observations submitted [after the closing of the debate] could only be taken into account if the Board reopened the debate (Art. 113 EPC) which depends on its discretion." The board was of the view that analogous considerations applied to the EPO departments of first instance. The board found that the examining division did commit an error, but a substantive and not an (independent) procedural one. The procedural consequences were caused exclusively by the implementation of the division's erroneous substantive position. After the applicant filed an appeal against the decision to refuse the European patent, the examining division rectified their decision to refuse. The request for reimbursement of the appeal fee at 50% under R. 103(2) EPC was refused on the grounds that by rectifying the decision the examining division had set the decision under appeal aside and had allowed the appeal. As such the applicant's request for the withdrawal of its appeal had no object and in the absence of a pending appeal that might be withdrawn, R. 103(2) EPC did not apply.