Application EP 3 186 762 relates to a system and method for electronic payments
Brief outline of the case
The application was refused and the applicants first appealed the refusal.
The appeal was later withdrawn and the applicants requested a reimbursement of the appeal fee of 75%. The board decided only to reimburse 50% of the appeal fee.
The applicants’ point of view
The applicant requested to reimburse 75% of the appeal fee according to R 103(2), because it expected that a substantive examination of the appeal has not yet started.
The applicants noted that while R103(2) relates to the reimbursement in response to a communication from the board indicating its intention to start substantive examination of the appeal, the corresponding reimbursement obviously has to apply also to a case where such a communication has not even been issued.
The board’s decision
The board considered that the applicant is only entitled to a refund of 50% under Rule 103(3,c). The board considered that the applicant’s argument following the word ‘obviously’, to be entirely lacking in merit.
The appellant was referred to T 0853/16 for the approach that the board intends to take in this case.
The board, noted on the one hand that appeal procedures are terminated, as far as substantive issues are concerned, when the sole appellant withdraws the appeal, cf. G 8/91, OJ EPO 1993, 346.
The board considered that, with its inherent power, it is authorised to examine the applicant’s request for reimbursement of the appeal fee and to issue a decision if the request for reimbursement cannot be granted. The board referred to T 41/82, OJ EPO 1982, 256 and J 12/86, OJ EPO 1988, 83.
Therefore, the present appeal was pending until the board has decided on the applicant’s request for reimbursement of 75% of the appeal fee or until the applicant withdraws this request.
This does not change even if, in the meantime, the applicant has been informed that the present application is deemed to be withdrawn due to non-payment of the renewal fee.
In line with the findings of T 0853/16, the board considered that the issuance of a communication indicating a board’s intention to start substantive examination of the appeal was a mandatory requirement for the 75% refund of the appeal fee.
Furthermore, following the approach taken in T 0853/16, the board considered that the clear and explicit wording of R 103(2) left no room for contradictory interpretations
The clear and explicit wording of R 103(2) EPC precludes the application of this Rule suggested by the applicant’s based on its alleged ratio legis, as such an application would directly contradict this wording.
Moreover, contrary to the applicant’s view, the board took from points 66 and 67 of document CA/80/19, that the ratio legis of R 103(2) went beyond reducing the appeal backlog by incentivising withdrawals.
Additionally, the legislator intended to provide the boards with a tool for steering the timing of appeal withdrawals in order to reduce situations where the withdrawal of an appeal coincided with its examination by the boards.
Furthermore, the legislator’s intention was to leave it up to the boards whether to use a communication indicating the intention to start substantive examination of the appeal. According to the board, such a communication is not mandatory, cf. Point 16 of the communication under Art 15(1) RPBA.
The board referred to Art 31(1) and 32 VCLT. For the board, Art 32 VCLT the ‘travaux préparatoires‘ and the circumstances of the conclusion of the EPC serve merely as supplementary sources confirming the result of the interpretation, or they are consulted if no meaningful meaning can be determined by applying the general rule of interpretation.
For the board, he clear and explicit wording of R 103(2), considered under Art 31 VCLT ruled out the possibility of applying this Rule in a manner analogous to that employed in T 2361/18 for R 103(4,c).
Incidentally, contrary to the applicant’s view, the legal situations in T 2361/18 and the present case are different. Unlike R 103(2), Rule 103(4,c) does not explicitly require that the withdrawal of an appeal be “in response to a communication from the Board of Appeal”, cf. T 2361/18, Reasons 3.4.
Hence, the applicant’s request for reimbursement of the appeal fee at 75% under R 103(2) must be refused. Under R 103(3,c), the appeal fee is to be reimbursed at 50%.
Comments
On the one hand, the board explains that the legislator’s intention was to leave it up to the boards whether to send a communication indicating the intention to start substantive examination. Issuing such a communication is not mandatory.
At the same time, the board insisted that in order to obtain a reimbursement of 75% under R 103(2), a communication that the board intends to start examination of the appeal is mandatory.
One possible conclusion is that a board can arbitrarily decide whether to send a communication under R 103(2) and hence deprive the appellant of the maximum reimbursement possible. .
In the present case, the statement of grounds of appeal was filed on 08.09.2022 and the withdrawal of the appeal was filed on 28.02.2023.
The board did not have had any work to do on the present appeal. The request for a 75% reimbursement was corresponding plainly to the intention of the legislator.
On the one hand, the Art 31 VCLT is quite clear, but the explanations given by the legislator, cf. Art 32 VCLT, tell a different story. Art 32 VCLT could have been applied if common sense had prevailed, rather than extremely narrow minded legal arguments.
We are manifestly in presence of an ill drafted R 103(2) and this rule should be amended at the next best opportunity. When the board did not have to lift its little finger before the withdrawal of the appeal, then the reimbursement should be 75%. This was the clear intention of the legislator.
The applicant’s position was reasonable, that of the board was not.
Comments
2 replies on “T 2247/22 – Reimbursement of the appeal fee after withdrawal: 75% or 50% when the board had nothing to do”
I will admit, albeit grudgingly, that the Board’s position is not meritless: it follows from the plain wording of Rule 103(2). If this result was not intended, then it indicates that the rule has to be amended, not that the rule means the opposite of what it says.
What is more difficult to admit is that the EPO seems to apply the plain wording of its legal texts somewhat selectively, if not to say only when it sees fit. G 3/19 and the selective application of G 1/21 come to mind.
@ Extraneous Attorney,
Strictly speaking the board is correct. What is difficult to accept that is that a bord can decide or not to send a communication before it starts examining the appeal. This is arbitrary.
The Rule has to be amended and also allow a 75% reimbursement if the board has not started working on an appeal, with or without a communication. Another possibility would to make the issuance of such a communication mandatory. This would avoid the board claiming that it started examination when it had not. A similar regulation has been imposed to DG1 when it refused to reimburse the examination fee.
There is more than G 3/19 or G 1/21 to query, and you have a point. Predictability can be forgotten when a party goes to appeal.