The present decision is a straightforward application of G 2/97. Its particularity lies in the fact that the applicant had evidence that somebody at the EPO had noticed that the appeal fee had not been paid: for some unknown reason an incomplete internal EPO memo “Processing of an appeal” was accessible through Epoline file inspection. But this element does not really bear on the logic of G 2/97.
[1] In its decision G 2/97 [4.1-2], the Enlarged Board of Appeal (EBA) held that the principle of good faith does not impose any obligation on the board of appeal to notify an appellant that an appeal fee is missing when the notice of appeal is filed so early that the appellant could react and pay the fee in time, if there was no indication – either in the notice of appeal or in any other document filed in relation to the appeal – from which it could be inferred that the appellant would, without such notification, inadvertently miss the time limit for payment of the appeal fee.
[2] In decision J ../87, the Legal Board of Appeal held that in the absence of any circumstances which may create a legitimate expectation to receive a warning or notice, the EPO has no obligation to inform an applicant or his representative that a fee has not been paid in due time.
[3] By referring to a printout of an incomplete internal EPO memo “Processing of an appeal” (Form 2701), the appellant argued that somebody at the EPO had noticed that, although the notice of appeal had been filed, the corresponding appeal fee had not been paid at a moment in time when there was still time enough to pay the appeal fee within the time limit.
[4] The board notes however that it is unclear from the referred to document whether the EPO had noticed the lack of payment of the appeal fee before or after the time limit for the payment had expired since the same document indicates that the statement of the grounds of appeal had already been filed (which was actually filed on 21 August 2008). The appellant had no explanation for this fact.
[5] Although the board cannot exclude that indeed an earlier (incomplete) version of Form 2701 had been present in the electronic file and therefore had been accessible via online file inspection before the completed form was added to the same file on 2 September 2008, the board considers it actually irrelevant whether or not the incomplete Form 2701 was produced and made accessible on 12 June 2008. Even if an officer at the EPO had noticed on 12 June 2008 that the notice of appeal had been filed but the corresponding appeal fee had not been paid, he or she had no information as to whether any non-payment might not be on purpose and therefore conclude that the appellant, in the absence of any notification, would inadvertently fail to pay the appeal fee within the time limit.
[6] There was still enough time to pay the appeal fee between 12 June 2008, when the EPO arguably had noted that the fee payment was lacking, and the end of the two month period of A 108, which ended on 30 June 2008 while it was recorded by the appellant’s representative as ending on 18 June 2008 to avoid any risks related to the application of R 126(2). The appellant argued however that, in contrast to the case underlying decision G 2/97 (where the notice of appeal was filed five weeks before the expiry of the time limit), the time period during which the fee could be paid after the filing of the notice of appeal in the present case was much shorter, i.e. one week if the ten day period under R 126(2) was not considered. This period could therefore not be construed as so long that the appellant could react and pay the appeal fee in time, as it was in the case underlying decision G 2/97.
[7] The board notes that it is not uncommon in the field of patenting that the payment of an appeal fee is handled separately from the filing of the notice of appeal (i.e., by third parties processing payments), which means that a payment may well arrive at the EPO later than the notice of appeal but still within the time limit. It may well be that the payment of appeal fees is withheld deliberately, both in inter-partes and in ex-parte proceedings. For example, a representative may file a notice of appeal and withhold the payment of the appeal fee until final instructions on the effective lodging of the appeal are received (see, for example, decision T 1465/05 [VII]). In fact, nothing in the EPO file indicated that the appellant may inadvertently fail to pay the appeal fee within the time limit. Therefore, the board cannot see any factual difference to the case underlying decision G 2/97 which would justify a different legal position.
[8] Further in this respect, the present case also differs from earlier cases referred to by the appellant […]. In the case underlying decision T 923/95, the appellant paid an insufficient appeal fee. In the case underlying decision J 13/90 […] the applicant, in a request for re-establishment after its failure to pay a renewal fee, announced to pay this renewal fee only after re-establishment was granted (disregarding the provision that the omitted payment should be completed within the time-limit for filing the request for reestablishment). In both cases the filed documents indicated that some error(s) had occurred on the appellant’s side and that the appellant was likely to inadvertently fail to make a timely payment.
[9] In the present case however, no evidence is on file that the EPO could have inferred from the filed documents that without a notification, the appellant would inadvertently miss the time limit for paying the appeal fee. Therefore and following the general findings in decisions G 2/97 and J ../87 the board decides that the principle of legitimate expectations does not apply.
We shall see another aspect of this decision tomorrow, if you like.
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