T 0707/12 10-02-2017

1. Deemed filing and admissibility of the appeal

1.1 Pursuant to Article 14(4) EPC, legal persons registered in a Contracting State having an official language other than English, French or German, may file documents which have to be filed within a time limit in an official language of that State (admissible non-EPO language). They shall, however, file a translation in an official language of the European Patent Office ('Office'). If a document is not filed in the prescribed language, or if any required translation is not filed in due time, the document shall be deemed not to have been filed.

1.2 Pursuant to Article 108 EPC, second sentence, the notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid. Article 8 RFees, first sentence stipulates that the time limit for payment shall in principle be deemed to have been observed only if the full amount of the fee has been paid in due time. Under Rule 6(3) EPC a reduced appeal fee is payable where a person files an appeal in an admissible non-EPO language under Article 14(4) EPC. In the present case, the time limit for filing the notice of appeal and thereby the time limit for paying the appeal fee expired on 02 April 2012. A reduced appeal fee pursuant to Rule 6(3) EPC was paid on 29 March 2012, and a full appeal fee was paid on 3 June 2015 (see point III, fourth paragraph above).

1.3 It is undisputed that the appellant was not entitled to use Dutch in filing documents with the EPO. It is also undisputed that the filing of the notice of appeal in Dutch did not entitle the appellant to benefit from the fee reduction. Rather, appellant argues that the EPO should recognise the appeal as valid, i. e. as deemed filed, both with regard to the used language and the fee payment, through the application of the principle of the protection of legitimate expectations.

1.4 It appears uncontested by the parties that the relevant facts of the present case concerning the deemed filing of the appeal are very similar to those underlying the decisions T 595/11 of 27 May 2015, T 1037/11 of 29 June 2015 and T 2554/11 of 23 June 2016, to which respondent and appellant were also party and which were decided by the present Board in the same composition. The written reasons of all three decisions were available to the public at least since October 2016. Furthermore, having received the preliminary opinion of the Board (see point III above) none of the parties provided arguments why the Board should decide differently in the present case. The Board itself has carefully reviewed the facts and concludes that the reasoning given in the cited cases is also applicable in the present case. In particular, explicit reference is made to Nos. 1.1-1.16 of the Reasons in T 595/11 and to Nos. 1.1-1.24 of the Reasons in T 1037/11.

1.5 The differences in the length of time at various stages of the proceedings do not appear to be materially different from those in the cited cases. Here, the time limit of Article 108 EPC for filing the notice of appeal expired on 2nd April 2012, while the EPO received the notice of appeal three workdays earlier. More than three years have passed before the EPO or the respondents became aware of the deficient fee payment. Other procedural differences exist, but they do not appear to affect the issue of the deficient fee payment. Thus the Board has not identified any relevant fact that would motivate a different decision in the present case.

1.6 Therefore, following decisions T 595/11 and T 1037/11 the Board finds that the Office had a duty to inform the appellant about the deficient fee payment within a reasonable time frame after expiry of the Article 108 EPC time limit but did not do so. Three years cannot be regarded as a reasonable time frame. An objective observer relying on the duty of the Office to act within a reasonable time would have concluded that the appeal had been examined for such formalities as the appeal fee and thus also for the correct language in the notice of appeal. In this manner also the appellant could have reasonably expected that fee and language were no longer an issue which could preclude the examination of the appeal on its merits. Its expectations were also legitimate, given that it had legitimate interests in the positive outcome of the appeal and there is no indication in the file that it were or ought to have been subjectively aware of its own error or the fact that the Office also did not discover it.

1.7 Having established that legitimate expectations of the appellant arose, the Board also finds that overall less harm is done if the appeal is deemed filed. The Board is aware that this may put the respondent in a worse position, in the sense that it will be prevented from immediately achieving its obvious and legitimate goal, the failure of the appeal, in the sense that the appeal would have failed without regard to its substantive merits.

1.8 The Board considers that as far as possible, the consequences of the non-observance of the duty of the Office should not be to the detriment of any party. However, the failure of the Office to check correct fee payment and issue a warning in good time cannot be remedied here without at least one party suffering some disadvantage or detriment.

1.9 Weighing up the legitimate interests of both sides and also that of third parties, and considering the overall circumstances of the case, the Board concludes that the original error might have had serious and inequitable consequences through the Office's failure to discover it. Therefore, it is equitable that the Office's failure is made good and the error is now allowed to be remedied, as far as possible. The Board further considers that the possibility of a real, but otherwise in itself not necessarily decisive setback for a party is more preferable than a certain decisive loss of all rights for another party. Therefore the Board accepts, through the application of the principle of protection of legitimate expectations, that the appeal fee has been timely and fully paid. Similarly, it also accepts that the English translation of the notice of appeal in Dutch was the original notice of appeal. The Board considers that in this manner overall least harm is done to all parties and in the end the appeal can be decided on its merits.

1.10 The Board is satisfied that further criteria of a valid and admissible appeal are fulfilled. The Board concludes that the appeal is deemed to have been filed and admissible.

2. Amendments main request

2.1 Assembly of claim 1

2.1.1 The assembly according to claim 1 as granted is firstly based on claim 1 as filed. Moreover, with respect to claim 1 as filed, the following clause has been newly added at the end:

"..., and that the drive unit (6) is controlled by a control unit (7) for adapting the speed of movement of the feed platform such that the animal is provided a span of time on the feed platform in which the animal is not milked, said span of time having a magnitude amounting to at least approximately half the milking period."

2.1.2 This newly added clause is partly based on the embodiment described under paragraph 0241, column 49, lines 2-14, of the application (as published). In particular, it is derivable from this passage that in a certain span of time the cow is not milked (in which she is able to consume the basic feed). This certain span of time may have, inter alia, a magnitude that amounts to at least approximately half the milking period, see col. 49, lines 11-14 (as published).

A further basis of disclosure forms paragraph 0242 of the application (as published). This passage again refers to the magnitude of the span of time, regarding the identity of a particular cow. It is stated that the feeding system control unit 7 has to control the drive unit 6 in such a way that the cow with the longest feed-duration will have sufficient time to consume feed. To this end, the drive unit 6 is capable of decelerating or accelerating the speed of movement of the feed platform 1. The Board moreover notes that, as argued by the appellant, this adaption of the speed of movement of the feed platform is also generally derivable from paragraph 0381 of the application (as published).

2.1.3 As held by the opposition division, claim 1 as granted indeed requires that the speed of movement of the feed platform is invariably adapted such that the span of time on the feed platform in which the animal is not milked, i.e. a dwell time, has a magnitude amounting to a certain span of time. It is common ground that there may well be other means or parameters influencing the dwell time. However, contrary to the appellant's view, the speed of the controlled drive unit always has to be chosen such that, at least for about half a milking period, milking of the animal does not take place. In other words, according to granted claim 1, the drive speed - in the end - determines a certain dwell time. For example, if the total milking time amounted to 10 minutes (cf. application, paragraph 0243), and the length of the feed platform was made shorter, claim 1 stipulates that the speed of movement has to be reduced, such that the span of time in which the animal is not milked invariably remains approximately half the milking period, i.e. 5 minutes.

2.1.4 The Board in any case concurs with the appellant that the skilled person would directly and unambiguously glean from paragraphs 0381 and 0242 of the application, that the control unit may control the drive unit 6 to vary the speed of the feed platform for a certain time span of any identified cow in which the cow is not milked. Moreover, following from the skilled person's reading in context with the foregoing paragraph 0241, this certain span of time may have a magnitude that amounts to at least approximately half the milking period, as is also required by claim 1 as granted.

Hence, contrary to the opposition division's finding, the Board considers the subject-matter of granted claim 1 to be originally disclosed.

2.2 Device claims 21 to 23 include the assembly of claim 1 and have now been amended in that the devices of claims 21 to 23 are indeed suitable for the assembly, cf. claims 23, 24, and 25 as originally filed.

2.3 Method claim 24 corresponds to method claim 26 as filed, and uses the assembly of claim 1.

2.4 The Board concludes, therefore, that the subject-matter of the independent claims of the main request fulfills the requirements of Articles 100(c) and 123(2) EPC.

3. Remittal

Since only the ground of Article 100(c) EPC in conjunction with Article 123(2) EPC has been dealt with in the first instance, and further substantive issues were not raised in the appeal proceedings, the Boards exercises its discretion under Article 111(1) EPC by remitting the case to the opposition division for further prosecution, as has also been agreed with by the appellant. Since the subject-matter of the independent claims of the main request complies with Article 123(2) EPC, there was no need for the Board to consider the auxiliary request.