11.11.1 Partial reimbursement under former Rule 103(2) EPC

R. 103(2) EPC as amended on 13 December 2013 (CA/D 16/13; OJ 2014, A3) was amended by the decision of the Administrative Council of 12 December 2019 (CA/D 14/19; OJ 2020, A5) as of 1 April 2020. The decisions set out below concern R. 103(2) EPC as in force prior to 1 April 2020. It differs from current R. 103(3) EPC only in that the time limit under R. 103(3)(a) EPC is now "within one month of notification of a communication issued by the Board of Appeal in preparation for [the] oral proceedings" rather than "at least four weeks before [the date of oral proceedings]".

According to R. 103(2) EPC (as prior to 1 April 2020), the appeal fee was reimbursed at 50% if the appeal was withdrawn: after expiry of the period under R. 103(1)(b) EPC; and at least four weeks before the date for oral proceedings (where one had been set) or before expiry of the period set by the board for filing observations in any communication inviting the appellant to file observations. This version of the provision applied to appeals pending on 1 April 2014 and to appeals filed thereafter, until 1 April 2020, from which date the current R. 103 EPC applied to appeals pending at that date and to appeals filed after that date.

In T 1086/09 the board held that a letter received on 28 March 2014 stating that the appeal should be withdrawn "hereby" would mean that the appeal was withdrawn on 28 March 2014, and thus no longer pending on 1 April 2014. In T 370/11 the board held that the 50% was to be calculated on the basis of the appeal fee actually paid, and not on the basis of the rate of the appeal fee applicable on the date of withdrawal or reimbursement.

In T 1402/13 of 31 May 2016 date: 2016-05-31, the board stated that under R. 103(1)(b) EPC and R. 103(2) EPC (as prior to 1 April 2020) the termination of appeal proceedings caused by a loss of rights due to the non-payment of renewal fees could not be equated to a declaration of withdrawal of the appeal. This result was also supported by the travaux préparatoires (CA/90/13 Rev. 1), which explicitly required the appellant to make a procedural declaration. In order to claim entitlement to reimbursement under R. 103(2) EPC (as prior to 1 April 2020), the appellant was required, at a time when its application was still pending, to make a procedural declaration that left no doubt that withdrawal of the appeal was intended. As this was not the case, the request for reimbursement of the appeal fee was rejected.

In T 265/14 the appeal had been withdrawn after expiry of the period set by the board in a first communication inviting the party to file observations under R. 100(2) EPC but before expiry of the period set in a second communication. The board held that R. 103(2)(b) EPC (as prior to 1 April 2020) was not to be interpreted as definitively ruling out reimbursement of 50% of the appeal fee where no observations were filed within the period set under R. 100(2) EPC. If a board then set a new period for filing observations, it thereby gave the appellant a fresh opportunity to withdraw the appeal, with the effect of reducing the fee, within that period. So the board concluded that issuing a second invitation under R. 100(2) EPC was to be treated as equivalent to setting a date for oral proceedings after expiry of the period set in the first invitation, which likewise reopened the possibility of the reimbursement of the appeal fee under R. 103(2)(a) EPC (as prior to 1 April 2020). That reimbursement was possible in those circumstances supported the view that R. 103(2) EPC (as prior to 1 April 2020) as a whole was to be interpreted broadly in the light of its object and purpose and that both its scenarios could be treated in the same way. The rationale of T 265/14 was also followed in T 110/18 and T 2044/16.

In T 683/14 the examining division committed a substantive and not a procedural error. After the applicant filed an appeal against the decision to refuse the European patent, the examining division rectified their decision to refuse. The request for reimbursement of the appeal fee at 50% under R. 103(2) EPC (as prior to 1 April 2020) was refused on the grounds that by rectifying the decision the examining division had set the decision under appeal aside and had allowed the appeal. The board stated that as such the applicant's request for the withdrawal of its appeal had no object and that in the absence of a pending appeal that might be withdrawn, R. 103(2) EPC (as prior to 1 April 2020) did not apply.

In T 1548/15 the board ordered that the appeal fee be reimbursed at 50% pursuant to R. 103(2)(a) EPC (as prior to 1 April 2020). The agreement by the appellant (patent proprietor) to terminate the appeal proceedings against the decision of the opposition division to revoke the European patent (in accordance with R. 84(1) EPC), after the patent had in the meantime lapsed in all designated contracting states, was equivalent to a withdrawal of the appeal.