2.2.3 Payment of opposition fee – correction of a payment form

Art. 99(1), last sentence, EPC states that a notice of opposition is not deemed to have been filed until the opposition fee has been paid. According to the board in T 152/85 (OJ 1987, 191), payment of an opposition fee is a factual requirement, which must be fulfilled within the nine-month opposition period if an opposition is to be admitted. Failure to pay an opposition fee within the required period where the filing of an opposition is intended is a factual mistake which cannot be rectified once the time limit for filing an opposition has passed. In the board's view, it could not be corrected under R. 88 EPC 1973 (R. 139 EPC). It was apparent from the wording of that rule that the clear policy of the EPO was to distinguish between a mistake in a document and other kinds of mistakes, such as failure to pay a fee in time, and only to allow correction of mistakes in a document.

In T 1000/19, however, the board allowed the correction of electronic form 2300E. The opponent's representatives had mentioned in their letter accompanying the notice of opposition that they had authorised the responsible EPO department to debit the opposition fee from their deposit account, but had failed to indicate the payment method in box X of the form. The opposition division's view that R. 139 EPC was not "time-barred" and could therefore not be applied to the non-extendable time limit for filing an opposition was rejected by the board as legally incorrect. There could be no doubt that the ratio of G 1/12 (OJ 2014, A114) also applied if the admissibility of an opposition, or the question whether an opposition was deemed to have been filed, was concerned (T 615/14, T 579/16). Furthermore, the board saw no reason why the lines of reasoning set out in G 1/12 regarding the applicability of R. 139 EPC should not equally apply to a correction of an incorrectly filled-in payment form (see T 317/19). Rather, the applicability of R. 139 EPC to debit orders had been acknowledged or at least not ruled out by the boards of appeal (T 152/82 date: 1983-09-05, OJ 1984, 301, T 17/83 of 20 September 1983 date: 1983-09-20).