3. Petition for review under Article 112a EPC

In R 4/18 the Enlarged Board held that minutes were not considered to be a decision. It did not see how the use of the word "conclusion" instead of "preliminary view" in the context of the minutes of oral proceedings could transform those minutes into a decision, noting that the appeal proceedings had been terminated by the appellant's (petitioner in the case in hand) withdrawal of the appeal in the proceedings under review. The Enlarged Board noted that it was the common practice of the boards to express views or conclusions on the substantive issues before them during the course of the oral proceedings. A decision on the case is then made at the end of the oral proceedings.

In R 1/18 the Enlarged Board was called on to decide whether a petition for review for which the fee had not been paid in time was to be regarded as inadmissible or deemed not to have been filed. The same question arose in relation to a request for re-establishment of rights. The Enlarged Board saw no reason not to apply the findings reached in opinion G 1/18 (OJ EPO 2020, A26) to the provisions governing the legal effects of late payment of the fee for petition for review and so concluded that the petition for review had to be deemed not filed and that the associated fee had to be reimbursed. On requests for re-establishment of rights generally, it observed that, while R. 136(1), last sentence, EPC was worded in the same way as Art. 108, second sentence, EPC, which had been examined in opinion G 1/18, R. 136(1) EPC also provided that the period for filing a request for re-establishment of rights generally began to run from the removal of the cause of non-compliance, which meant that period could not always be determined without thoroughly investigating the circumstances of the case (the findings in G 1/18, in particular those in point IV.3 of the Reasons, were thus not directly applicable – the notion of examining the merits of a non-existent request, albeit merely as a legal fiction, was in itself contradictory). Turning specifically to R. 136(1), second sentence, EPC, however, the Enlarged Board observed that it laid down different rules for re-establishment of rights in respect of the period for filing a petition for review under Art. 112a EPC. In the case in hand, therefore, a purely formal examination of the request for re-establishment of rights was sufficient and there was no need to examine its merits. The Enlarged Board thus concluded that the proper legal effect of late payment of the fee for requesting re-establishment of rights was a finding that the request was deemed not to have been filed and that the fee was to be reimbursed (see also T 46/07, point 1.3.2 of the Reasons). The Enlarged Board was competent to decide in its restricted composition pursuant to R. 109(2)(a) EPC that the request for re-establishment of rights and the petition for review had to be deemed not filed. It ordered reimbursement of the associated fees.