11.14. Reimbursement of the appeal fee outside of the scope of Rule 103 EPC because of a violation of the principle of the protection of legitimate expectations

In T 308/05 the board ruled that the appeal fee was to be reimbursed even though the appeal had been withdrawn. Referring to J 30/94 and J 38/97 (see below) the board held that the fact that in the case in hand the EPO had been found to have breached the principle of the protection of legitimate expectations, and that the consequence had been the filing of an appeal which was objectively superfluous, made it necessary for reasons of equity to refund the appeal fee paid by the appellant. See also T 1785/15.

In T 613/14 the board stated that in contrast to a request for correction of the minutes or the decision to grant, there was no established case law on the issue of whether or not the rejection of a request for correction of a decision under R. 140 EPC was open to appeal. It found therefore that it was likely, that when filing the appeal, the appellant had relied on the opposition division's statement that the decision was open to appeal. The board considered the opposition division's statement to have created a legitimate expectation that an appeal would be found admissible and examined as to its substance, at least in respect of the request for correction of the decision. However, in its preliminary opinion, the board took the position that the appeal against the opposition division's refusal of the request to correct its decision was not admissible. The board held that it had thus deprived the appellant of its legitimate expectations. After the board had maintained its preliminary opinion during the oral proceedings, the appellant withdrew its appeal. Under these circumstances, the board considered it justified to order the reimbursement of the appeal fee in accordance with J 30/94, J 38/97, T 308/05 and T 1785/15.

In J 30/94 the board held that Art. 109(2) EPC created a legitimate expectation of the parties that an appeal would be remitted to the board of appeal within a reasonable time after the decision of the department of first instance not to allow the appeal. The board held EPO had clearly offended against this legitimate expectation because the appeal was only referred to the Boards of Appeal seven years after its filing. The board found it equitable under these exceptional circumstances to order the reimbursement of the appeal fee even though the appeal had been withdrawn.

In J 38/97 the appeal was found inadmissible but the appeal fee was nevertheless refunded. The board took the view that the appellant, having requested an appealable decision, could legitimately expect the impugned decision to be issued by the competent department and not by a person lacking legal authority. In accordance with the principle of good faith, it was equitable in these circumstances to order the reimbursement of the appeal fee.