EP 3 702 157 relates to a method and device for accurately laying sheets
Brief outline of the case
The patent was revoked and the opponent appealed (sic) the decision.
On the cover sheet (EPO Form 2330), the operative part of the decision incorrectly stated that the OD had rejected the opposition.
In view of this manifestly wrong decision, the opponent appealed.
The opponent requested to set aside the decision of the OD and to revoke the patent in suit in accordance with the decision of the OD. It also requested that “‘after interlocutory revision of the appeal”, the appeal fee be refunded to the opponent’s representative.
The OD corrected ex-officio EPO Form 2330 under R 140 as it contained a manifest error. Instead of the incorrect form, the OD used EPO Form 2331.
Following a communication of the board, the opponent withdrew its appeal.
The board’s decision
Refund of the appeal fee under R 103(1,a)
The appeal fee is refunded in full under R 103(1,a) in the event of interlocutory revision or where the Board of Appeal deems an appeal to be allowable, if such reimbursement is equitable by reason of a SPV
For the board the correction by the OD under R 140 cannot at the same time be regarded as interlocutory revision within the meaning of Article 109(1),.
This is already contradicted by the fact that the OD did not characterise its decision as an interlocutory revision decision, but only examined and affirmed the requirements for a correction within the meaning of R 140.
Irrespective of this, the bord reminded that interlocutory revision is not possible in inter partes procedures.
Refund of the appeal fee under R103 (1, b)
The board did not interpret the statement of the opponent in the notice of appeal as actual grounds of appeal, but rather as a request for rectification under R 140.
According to the apparent intention of the opponent, the observations should only be considered as actual grounds of appeal if the OD had actually not complied with the opponents’ request in due time before expiry of the time limit for filing grounds of appeal, and had not corrected the operative part of the contested decision.
However, since the OD corrected the operative part of its decision in good time before expiry of the time limit for filing the grounds of appeal, the condition that the statements in the notice of appeal should be interpreted as grounds of appeal did not arise.
As a result, the appeal was withdrawn before the statement of grounds of appeal was filed and before expiry of the time limit under Art 108, so that the appeal fee must be refunded in full under R 103(1,b).
Comments
The board was very kind with the opponent’s representative when it considered that the notice of appeal was a mere request of correction of the decision under R 140.
Filing an appeal just because the formalities officer has used the wrong covering sheet is rather far-fetched.
On top of this the requesting reimbursement of the appeal fee arguing that the OD had taken an interlocutory decision, shows a deep misunderstanding of the opponent’s representative of the notion of interlocutory decision.
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