G 0002/91 (Appeal fees) 29-11-1991

Reasons for the Decision

1. First of all, in both case T 604/89 and case T 73/88 all the appellants were parties to proceedings before the first instance as opponents. However, the point of law submitted by Board of Appeal 3.4.2 has been extended to cover not only the case of several opponents but in principle also that of a cross-appeal by the opponent and the patent proprietor; this is possible where the patent is maintained as amended on the basis of an alternative request by the patent proprietor, as was established in decision T 234/86 (OJ EPO 1989, 79). As the President too pointed out, to extend the question in this way seems logical, since the arguments in decision T 73/88 could quite easily be applied to this last-mentioned situation.

2. The arguments of Board of Appeal 3.3.1 in its decision which departs from previous practice in case T 73/88 were based primarily on one interpretation of Article 107 EPC. The first sentence of this provision states that any party to proceedings adversely affected by a decision may appeal. The second sentence states that any other parties to the proceedings are parties to the appeal proceedings as of right ("Beteiligten ... am Beschwerdeverfahren", "de droit parties à la procédure de recours"); this obviously refers primarily to the party (or parties) who opposed the appellant in the proceedings before the first instance and was thus not adversely affected by this instance's decision but benefited from it, e.g. the patent proprietor in the case of rejection of an opposition or - conversely - the opponent in the case of revocation of the patent. The situation mentioned above under point 1, where a patent was maintained as amended by decision of the first instance on the basis of an alternative request by the patent proprietor, was a special case insofar as both the patent proprietor and the opponent (provided he has requested that the patent be revoked) would be adversely affected by this decision and would thus be regarded as persons entitled to appeal under Article 107, first sentence, EPC. If only one of the two filed an appeal, the other would be regarded as a party to the proceedings before the Board of Appeal within the meaning of Article 107, second sentence, EPC.

3. Application of the provisions of Article 107 EPC gives no cause - either as regards the appeal fees or in any other respect - for procedural complications of any relevance in this connection, as long as only one party files an appeal. However, the legal situation is more complicated where several persons side with a party, which in practice generally occurs when the oppositions of several opponents are rejected or (as in the case mentioned above) the patent is maintained as amended on the basis of an alternative request by the patent proprietor (after one or more oppositions). The main question arising is whether a party who has not himself filed an appeal is entitled by operation of law under Article 107, second sentence, EPC, to an independent position in the appeal proceedings. The answer to this question is of particular relevance to the possible entitlement of the parties referred to in Article 107, second sentence, EPC to continue the appeal proceedings in their own right if the (appellant's) appeal is withdrawn. Neither the brief explanations of the purpose of Article 107, second sentence, EPC given at the Munich Diplomatic Conference (see MDC, M/PR/I, p. 50, points 432-446), which deal mainly with the allocation of costs in inter partes proceedings, nor the other "travaux préparatoires" offer sufficient information as to how Article 107, second sentence, EPC is to be interpreted in the above respect.

4. The interpretation of Article 107 mentioned under point 2 above, on which the decision of Board of Appeal 3.3.1 in case T 73/88 was based, assumes that, immediately after a party to the first-instance proceedings files an appeal, all other parties to these proceedings are automatically ("by operation of law") parties to the appeal proceedings (Article 107, second sentence, EPC), with a procedural status of their own independent of the appellant's ("equal rights and status") and with the right to continue the appeal proceedings even if the appellant were to withdraw his appeal. This view forms the basis for the opinion held by Board of Appeal 3.3.1 that the payment of appeal fees after the first appeal has been filed is to be deemed without legal foundation. Even if not expressly stated in Board of Appeal 3.3.1's decision, the logical consequence would no doubt be that after the first appeal had been filed any further appeals would be without legal foundation.

5. In view of the limited scope of the point of law submitted by Board of Appeal 3.4.2 (see point III above), the Enlarged Board does not consider it necessary to go into all aspects of Article 107 EPC in this decision. To answer the point of law, it is sufficient to establish whether it is correct, as Board of Appeal 3.3.1 has assumed, that a party to appeal proceedings under Article 107, second sentence, EPC who is entitled to appeal but has not filed an appeal of his own has in all respects the same procedural status as an appellant. Only then is there any reason at all to consider the question of reimbursement of the appeal fee.

6.1. In the Enlarged Board's view, Board of Appeal 3.3.1 goes too far in one important respect in its interpretation of Article 107 EPC and that is in stating that a party to proceedings under Article 107, second sentence, EPC is entitled to continue the appeal proceedings even if the appellant has withdrawn his appeal. It is clear from generally recognised principles of procedural law that the appellant alone can decide whether the appeal filed by him is to stand. Parties to proceedings under Article 107, second sentence, EPC have no independent right of their own to continue appeal proceedings if the appellant withdraws his appeal. Article 107, second sentence, EPC does not grant parties to first-instance proceedings who have not filed an appeal a legal status independent of the appeal, but merely guarantees that they are parties to the appeal proceedings being heard. A person who is entitled to appeal but does not do so (the existence of an appeal presupposing payment of the appeal fee) and instead confines himself to being a party to the appeal proceedings under Article 107, second sentence, EPC, therefore runs the risk that the appellant may decide not to pursue his appeal. Whether appeal proceedings may be continued by the European Patent Office of its own motion after an appeal is withdrawn is quite another matter (cf. Rule 60(2) EPC). At all events, a party to proceedings under Article 107, second sentence, EPC has no independent right to continue the proceedings.

6.2. The question arises whether certain limits apply to a party to proceedings under Article 107, second sentence, EPC in the light also of the possibility a party has of filing his own requests in appeal proceedings. This applies in particular in connection with a possible independent right of a party to contradict the appellant's requests with his own, for example in the case of an appeal by the patent proprietor, by requesting revocation of the patent which has been maintained as granted or as amended by decision of the first instance. However, in view of related questions in other cases before the Enlarged Board dealing in general with the problem of entitlement to examine applications during opposition appeal proceedings, the Board considers it appropriate to refrain from making any comment.

7. In conclusion, applying the interpretation of Article 107 EPC favoured by Board of Appeal 3.3.1 could well lead to particular difficulties if the first appeal filed is rejected as inadmissible because the statement of grounds either has not been filed or has been filed late. A person entitled to appeal, who relied on this "first" appeal and so dispensed with filing his own appeal, would then have no chance of pursuing his own appeal because the period for appeal laid down in Article 108 EPC would have expired already.

8. It is therefore by no means pointless or unfounded for a party to file his own appeal, even if another appeal has already been filed previously. For this reason, there is also no ground for reimbursing the fee for any appeals filed after the first, unless the requirements of Rule 67 EPC are met. Any party to first-instance proceedings who is adversely affected by a decision has the right to file an appeal with his own request and submissions and his own statement of grounds and thus to determine the further course of the proceedings. A person who is entitled to appeal cannot be deprived of this right because someone else has already filed an appeal before him.