Referral to the Enlarged Board of Appeal by the Outgoing President of the EPO

7 August 2018

Shortly before the end of his term as President of the EPO, Benoît Battistelli referred (see here) the following question 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 referral is now pending under the reference G1/18. The main significance of this question from a practical perspective is that the appeal fee is not be reimbursed if the appeal is deemed inadmissible, but is reimbursed if the appeal is deemed not to have been filed.

The EPO’s announcement notes that the same question was referred to the Enlarged Board of Appeal in referrals G1/14 and G2/14.  However, the Enlarged Board of Appeal did not answer the question in either case. In G1/14, the Enlarged Board of Appeal concluded that the referral was inadmissible because the referring Board of Appeal had incorrectly applied the law, whilst in G2/14 the patent application in question lapsed through failure to pay a renewal fee, thereby terminating the appeal proceedings before a decision was issued. It is therefore to be hoped that the Enlarged Board of Appeal will now take the opportunity to provide clarity on this issue.

A decision is expected in around 18 months, and we will report again when there is any further news.

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