T 1703/12 – Nothing Left

In this case an applicant (and the Examining Division) had to learn that a request for reimbursement of the appeal fee will not be examined by the Boards if it is made after interlocutory revision has been granted - which confirms earlier case law.

[1] According to G 3/03, in the event of interlocutory revision under A 109(1), the department of first instance whose decision has been appealed is not competent to refuse a request of the appellant for reimbursement of the appeal fee, but has to submit this request to the board of appeal. This holds true if the request for reimbursement of the appeal fee was filed before the examining division granted interlocutory revision.

[2] In G 3/03 the Enlarged Board further stated that R 67 EPC 1973 (now R 103(1)(a)) provided that, in the event of interlocutory revision, reimbursement of the appeal fee should be ordered by the department of the first instance whose decision has been impugned, “if such reimbursement was equitable by reason of a substantial procedural violation”. From the wording of this provision it followed that the department of the first instance had to examine whether the requirements for reimbursement of the appeal fee were met, regardless of whether or not the appellant had actually submitted such a request. If the department of the first instance came to the conclusion that these requirements were not met, it could not order reimbursement of the appeal fee. In the absence of a request for reimbursement of the appeal fee, the decision of the department of the first instance granting interlocutory revision pursuant to A 109(1) would make no mention of the issue of reimbursement of the appeal fee, and the appellant would not be adversely affected by the decision (point [3] of the reasons). In case of interlocutory revision and reimbursement of the appeal fee not being contentious, the appeal was not remitted to, and thus would not be pending before, a board of appeal, the decision under appeal having been set aside and the appeal allowed by the department of the first instance (point [2] of the reasons).

[3] In the present case, the request for reimbursement of the appeal fee was only filed after interlocutory revision had been granted. At that time the appeal procedure was no longer pending, because the appeal had been fully dealt with and the appellant was not adversely affected. As a consequence, the request was submitted in the absence of a pending appeal and cannot, hence, constitute an ancillary issue to be dealt with in appeal proceedings. The reimbursement of the appeal fee is linked to the appeal procedure and cannot be separated from it.

[4] That being so, in the case at hand no appeal exists from a decision of a department of first instance for which the boards of appeal are responsible pursuant to A 21(1) and the Board is not empowered to decide on the request for reimbursement. Since no appeal procedure is pending, the Board can only remit the case to the department of first instance (following decisions T 21/02 and T 242/05). […]

The case is remitted to the department of first instance for further prosecution.

NB: Note that in T 242/05 the Board had added (my translation from the French):

“… Thus the first instance is fully competent for deciding that such a request is inadmissible. Consequently, the first instance should decide, and refrain from submitting this kind of case to the Boards, which is useless.” (my emphasis)

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