The declaration of entitlement mentioned in the Notice of 18 December 2017 concerning the reduced appeal fee can be filed until the end of the appeal period, despite the wording of point 4, last sentence, of the Notice, which must be reconciled with the meaning of point 11 of the Notice.

Die ursprünglich mit Rechtsgrund angeforderten und gezahlten Jahresgebühren wandeln sich durch eine zögerliche Tätigkeit des Amts im Prüfungsverfahren nicht nachträglich in rechtsgrundlos geleistete um (Punkt 7 der Entscheidungsgründe).

In T 2069/18 the examining division, when deciding to refuse the application, had also rejected as inadmissible a request that seven renewal fees be refunded in view of its having taken no action in the examination proceedings for at least seven years. The board concurred with the examining division that there was no legal basis for such a request but found that this was not a bar to its procedural admissibility. The request had been admissible but unfounded. The payment of renewal fees, the board observed, was governed by Art. 86 EPC, which provided that renewal fees for a European patent application were to be paid to the EPO in accordance with the Implementing Regulations. Its application was not linked to any particular action or inaction of those concerned, be it the applicant or the examining division. The upshot in this case was that, as the examining division had rightly found, the renewal fees at issue had been duly incurred and imposed. The refund arrangements laid down in the Rules relating to Fees, e.g. Art. 9 to 11 RFees, albeit inapplicable in the case in hand, showed that the EPC 1973 legislator had provided for the possibility of refunds in certain cases. Otherwise too, the EPO regularly refunded payments made without a legal basis of its own accord, on the grounds of equity. Renewal fees which had been duly imposed and paid were not retrospectively deprived of their legal basis because the EPO had been slow to act in examination proceedings. The fact of the matter was, firstly, that the payment of renewal fees was intended to ensure that only economically valuable applications (and patents) were pursued. Secondly, renewal fees, like other fees payable under the EPC, helped to cover the general need for funding that inevitably arose in running an authority such as the EPO which granted and maintained monopoly rights.