11.3.7 No reimbursement if appeal filed in accordance with the requirements of Article 108 EPC

In J 15/01 the Legal Board ruled that the fact that an appeal was against a communication, as opposed to a decision under Art. 106(1) EPC 1973, did not justify refunding the appeal fee. If ‒ as in the case before it ‒ the board concluded that there had not been an appealable decision under Art. 106(1) EPC 1973, this made the appeal inadmissible but did not mean it had never existed, the requirements under Art. 108 EPC 1973 having been met. The appeal fee could not therefore be refunded.

In J 18/12 the Legal Board held that the final non-existence of the patent application in a substantive sense did not mean that the appeal proceedings had not come into existence (as opposed to the legal fiction of non-existence when an appeal was deemed not to have been filed). This situation regularly arose in proceedings before the EPO, e.g. where a decision of the Receiving Section not to accord a filing date was appealed.

In T 1284/09 the board did not order reimbursement of the appeal fee for either of the two appeals because the requirements of Art. 108 EPC were fulfilled for each of the appeals. The original opponent and its purported assignee (the opposition division had rejected the assignment request) had each filed an identical notice of appeal against the same decision and each separately paid the appeal fee.