T 70/08 – Too Late

[7] The appellant has requested the reimbursement of the appeal fee relating to an earlier notice of appeal dated 13 September 2004 filed against a previous decision dated 15 July 2004 refusing the application and subsequently rectified by the Examining Division (ED) under A 109(1) on 28 December 2004. This request was already formulated before the ED during the subsequent first-instance proceedings following rectification of the first decision and in its second decision […] the ED considered the request as “deemed not to have been filed” on the grounds that the request was filed on 29 July 2005 (although wrongly dated 27 October 2004) and thus after rectification of the decision, i.e. after completion of the corresponding appeal procedure.

As already noted by the Board in its communication dated 22 March 2010, the request for reimbursement of the appeal fee is not allowable because the request was formulated by the appellant for the first time after the ED had already decided to rectify the first decision under A 109(1). Consequently, neither the ED nor the Board are able to order under R 103(1)(a) the reimbursement of the appeal fee of an appeal that has been fully allowed by the first-instance department and therefore closed before the appellant requested for the first time the reimbursement of the corresponding appeal fee (see in this respect decisions T 21/02 [3-8] and T 242/05 [1-2]).

This preliminary opinion of the Board was not disputed by the appellant in its letter of reply, and the Board sees no reason to depart from it.

In addition, the appellant confirmed during the proceedings that the auxiliary request for oral proceedings concerned the allowability of the appeal itself and not the request for reimbursement of the appeal fee relating to the previous appeal […], and in these circumstances there is no reason for the Board to arrange oral proceedings.

In view of all these considerations, the request for reimbursement of the appeal fee relating to the earlier appeal is refused for the reasons given above and already communicated to the appellant in the Board’s communication.

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