Decision from the Enlarged Board of Appeal in G1/18

23 July 2019

The EPO has issued a press release (see here) regarding the decision from the Enlarged Board of Appeal in G1/18. The Enlarged Board has concluded that an appeal is deemed not to have been filed if the notice of appeal is filed and/or the appeal fee is paid after expiry of the two month time limit under Article 108 EPC. Accordingly, the appeal fee will be reimbursed in such cases.

As we reported previously (see here), G1/18 arose from a referral to the Enlarged Board of Appeal by former EPO president Benoît Battistelli, shortly before the end of his term. The following question was referred to the Enlarged Board of Appeal:

If notice of appeal is filed and/or the appeal fee is paid after expiry of the two month time limit under Article 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed?

The full text of the Enlarged Board of Appeal’s decision is not yet available in English. However, according to the press release, the Enlarged Board of Appeal has taken the view that, if the two month time limit is not observed, an appeal is deemed not to have been filed and the appeal fee is reimbursed. The appeal is not to be rejected as inadmissible. More specifically, the Enlarged Board of Appeal answered the referred question as follows (provisional translation provided by the EPO):

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

    (a) 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;

    (b) 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;

    (c) 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 press release also comments that “the Enlarged Board further observes in its opinion that its answers to the referred point of law apply not only to appeals but also, by analogy, to similar situations, for instance in opposition proceedings (Article 99(1) EPC)”.

Accordingly, it seems that the Enlarged Board of Appeal considers its answers to the referred question to apply to other similar situations. For example, by referring to opposition proceedings and Article 99(1) EPC, the Enlarged Board of Appeal seems to be confirming that if a notice of opposition is not filed and/or the opposition fee is not paid within the nine month time limit under Article 99(1) EPC, the opposition shall be deemed not to have been filed and the opposition fee will be reimbursed.

 

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