11.4.2 Competence to decide on reimbursement

As to the question of which department is competent to decide on the request for reimbursement, in cases of interlocutory revision, the legal situation defined by G 3/03 (OJ 2005, 344) and J 32/95 (OJ 1999, 733) is now enshrined in R. 103(6) EPC (see T 625/09, T 206/10). In J 32/95 the Legal Board held that if the department of first instance considered the request for reimbursement of the appeal fee not to be well-founded in the event of interlocutory revision, it had to remit the request to the board of appeal for a decision. In G 3/03 the Enlarged Board of Appeal held that in the event of interlocutory revision under Art. 109(1) EPC 1973, the department of first instance whose decision had been appealed was not competent to refuse a request from the appellant for reimbursement of the appeal fee. The board of appeal which would have been competent under Art. 21 EPC 1973 to deal with the substantive issues of the appeal if no interlocutory revision had been granted was competent to decide on the request. G 3/03 was, for example, applied in T 1379/05, T 1315/04, T 245/05, T 1863/07 and T 2352/13.

In T 21/02 the board, distinguishing the facts from G 3/03 and J 32/95, held that it was not empowered to decide on the request for reimbursement of the appeal fee as the request had been submitted in the absence of a pending appeal and hence could not constitute an ancillary issue to be dealt with in appeal proceedings. An appeal had been fully dealt with by interlocutory revision by the department of first instance and was thus no longer pending when a request for reimbursement of the appeal fee was submitted (see also T 1703/12, T 2134/12, T 2008/14).

In T 242/05 the board held that once interlocutory revision had been granted, the appeal was res judicata. In the absence of a pending appeal, any request for reimbursement of the appeal fee filed after the decision to grant interlocutory revision will be considered inadmissible, regardless of whether the decision was taken by the examining division or the board of appeal as the body competent to consider the appeal (see also T 70/08).

In T 893/13 the board disagreed with T 21/02 and T 242/05, and found that since the examining division was not competent to decide that the appeal fee was not to be reimbursed, an interlocutory revision without an order for reimbursement could not be construed as a decision not to reimburse. The board further stated that a request for reimbursement of the appeal fee could be validly filed even after interlocutory revision, since R. 103(3) EPC (now R. 103(6) EPC) entrusted the boards with the decision on all other matters of reimbursement based on only two conditions: that the decision was rectified and that the appeal fee was not reimbursed by the examining division.

In T 657/17 interlocutory revision was granted by the examining division yet the matter was referred to the board for a decision on reimbursement of the appeal fee in the absence of any request for such reimbursement. The board referred to G 3/03 (point 3 of the Reasons) according to which, in the absence of a request for reimbursement of the appeal fee, the decision of the department of the first instance granting interlocutory revision pursuant to Art. 109(1) EPC should make no mention of the issue of reimbursement of the appeal fee, and the appellant would not be adversely affected by the decision. In the case in hand, the issue of reimbursement of the appeal fee should therefore not have been referred to the board and the board was not empowered to decide on this issue.