11.8. Reimbursement in full under Rule 103(1)(b) EPC

Under the EPC 1973, when appeal proceedings were terminated by the withdrawal of the appeal, R. 67 EPC 1973 was in general not applicable (see J 12/86, OJ 1988, 83; T 41/82, OJ 1982, 256; T 773/91; J 30/94; T 372/99; T 543/99; T 1216/04; T 552/07; for exceptions to this rule in case of a violation of the principle of the protection of legitimate expectations see J 30/94 and T 308/05).

Under the EPC 2000, however, the appeal fee is reimbursed if the appeal is withdrawn before the filing of the statement of grounds of appeal and before the period for filing that statement has expired (R. 103(1)(b) EPC). For cases where this provision was first applied, see T 1495/08, T 2052/08, T 1822/09.

For a case in which the patent application was withdrawn after the expiration of the period for filing the statement of grounds and the appeal fee was thus not reimbursed, see T 683/08. The board in T 1613/08 held that R. 103(1)(b) EPC did not confer any discretion on the boards to excuse missing the end of the period even by as short a time as one day.

In T 193/20 the board held that the withdrawal of the appeal must be expressed by an explicit and absolutely clear statement. The appellant's statement that it had "decided not to file the Grounds of Appeal", even in view of the request for reimbursement of the appeal fee in accordance with R. 103(1)(b) EPC, merely conveyed the appellant's intention not to file the statement of grounds of appeal, it did not imply an unambiguous withdrawal of the appeal. The filing (or non-filing) of the statement of grounds of appeal and the withdrawal of an appeal are separate, distinct procedural steps. See also T 2704/16.