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Institute of Professional Representatives before the European Patent Office
 

Enlarged Board of Appeal issues opinion G1/18 in line with epi amicus curiae brief

July 29, 2019

The Enlarged Board of Appeal has issued opinion G1/18 which responds to the point of law referred by the EPO President on whether an appeal is to be treated as not to have been filed or as inadmissible in cases of failure to observe the two-month time limit set forth in Article 108 EPC due to a belated payment of the appeal fee and/or belated filing of the notice of appeal as well as on whether the appeal fee is to be reimbursed in these cases.
After a careful analysis, the Enlarged Board of Appeal determined that (provisional English translation of the opinion provided at the press release of the EPO):

  1. An appeal is deemed not to have been filed in the following cases:

    1. where notice of appeal was filed within the two-month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two-month time limit;
    2. where notice of appeal was filed after expiry of the two-month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two-month time limit;
    3. where the appeal fee was paid within the two-month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND notice of appeal was filed after expiry of that two-month time limit.
  2. In the cases referred to in answers 1(a) to (c), reimbursement of the appeal fee is to be ordered ex officio.
  3. Where the appeal fee was paid within or after the two-month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND no notice of appeal was filed at all, the appeal fee is to be reimbursed.

The Enlarged Board of Appeal has therefore confirmed that an appeal is deemed not to have been filed where the notice of appeal is filed and/or the appeal fee is paid after expiry of the two-month appeal period. The appeal fee is to be reimbursed in these cases. Although the referred point of law only referred to belated filings/payments, point (3) of the opinion adds that the appeal fee is also to be reimbursed in cases where there is no notice of appeal at all.

Another interesting aspect of the opinion are the observations made by the Enlarged Board on pages 8 and 9 where it confirms that the issue at stake is a matter of fundamental importance because the referred point of law is relevant in a large number of similar cases. In this regard, the Enlarged Board specifically referred to Article 99 (1), second sentence, EPC (notice of opposition/payment of the opposition fee), together with Rule 77 (1) EPC and Article 112a (4), fourth sentence EPC (petition for review/payment of the petition for review fee), together with Rule 108 (1) EPC. It then concluded that, given the similarity of the wording retained by the legislator, the answers given to the referred question, including the one concerning the reimbursement of the fee paid, will have a direct impact on these cited similar cases.

epi has closely followed the development of this case and is pleased to see that the Enlarged Board of Appeal has not only answered the questions posed by the President of the EPO in line with the amicus curiae brief it filed in October 2018 but that the Enlarged Board has also agreed with the view that the answers to the referred point of law shall apply to similar situations such as opposition proceedings.

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