Thursday, 12 August 2010

T 1943/09 – Money Can’t Do It All

** Translation from the German **

Following the refusal of his application, the applicant paid the appeal fee but did not file any grounds for appeal within the time limits fixed by the EPC.

[3] The question of whether an appeal can be considered to have been validly filed when no notice of appeal has been filed but an appeal fee has been paid within two months after delivery [of the decision] has been the object of several decisions of the Boards of appeal (e.g. J 19/90 [3.1.1], T 445/98 [3.2.1], T 778/00 [3.2.4], T 275/86 [3.3.1]). With the exception of decision T 275/86, which considered the payment of the appeal fee sufficient under certain circumstances, all decisions have come to the conclusion that it is mandatory to file an appeal in writing if the appeal is to be considered as having been filed at all.

[4] The Board is of the opinion that this also follows necessarily from the requirements of the EPC.

Even under the old version of A 108, which was in force under the entry into force of the new version in December 2007, it was stipulated that the appeal has to be filed in writing at the EPO.

In its new form A 108 refers to the Implementing Regulations (“Notice of appeal shall be filed, in accordance with the Implementing Regulations …”). Corresponding R 99(1) lists the mandatory content of the notice of appeal (“The notice of appeal shall contain …”). Thereby the lawmaker, when revising the EPC, has emphasized (herausgestellt) the importance of the notice of appeal as a fundamental (konstitutiv) element by which appeal proceedings are instituted (eröffnet) in the first place. After this revision, there is even less doubt that the mere payment of the appeal fee cannot replace the notice of appeal, even if it is made within two months after the delivery of the decision that is to be appealed.

[5] From this it follows that in the present case there is no appeal. Thus the appeal fee is to be reimbursed.

[6] As to the applicant’s argument that his wrong assessment of the legal situation was a consequence of the unclear wording of A 108, the Board cannot see anything that could have given rise to a misunderstanding. Quite to the contrary, the content of A 108 and R 99(1) is clear and unequivocal as explained above under point [4]. Moreover it is to be noted that form 2019 12.07 annexed to the decision of the Examining Division contains all necessary pieces of information.

Not much to be said, except that I find the Board’s argument lame. The fact that an explicit requirement (“… in writing …”) has been deleted from A 108 and not even reproduced in the new Implementing Regulations is presented as evidence for the legislator’s will to emphasize this requirement. Not extremely convincing, is it? If anything is to be deduced (but I do not think there is!), it would be that the legislator cares less about the written form requirement than before. Please note, however, that the German version of the EPC has Beschwerdeschrift for notice of appeal”, which in itself suggests a written form.

You may download the whole decision (in German) here.