Late payment of appeal fee - appeal considered not filed or inadmissible?
1. Two recent decisions of Boards of Appeal of the EPO treated the question whether an appeal for which the appeal fee is paid after expiry of the appeal deadline is to be considered not filed or inadmissible. Depending on the answer to this question, the appeal fee is reimbursed or not. The views of the Boards of Appeal in the above decisions tend toward the result that the appeal is inadmissible and therefore the appeal fee is not to be reimbursed.
2. T2017/12 referred to a patent application that was refused by the Examining Division. The applicant did not file the appeal in due time. The applicant filed a request for re-establishment of rights in respect of the deadline for filing the notice of appeal (Article 108 EPC) and in respect of the deadline for filing the grounds of appeal. The requests for re-establishment of rights were refused. Incidentally, the Board of Appeal ruled that two fees for re-establishment are due in this case as two different deadlines were missed.
Even if the requests for re-establishment were refused and the notice of appeal and the grounds of appeal were therefore filed outside the deadlines set forth by Article 108 EPC, the Board of Appeal referred the following question to the Enlarged Board of Appeal: “Where a notice of appeal is filed but the appeal fee is paid after expiry of the time limit of Article 108 EPC, first sentence, is this appeal inadmissible or deemed not to have been filed?”
3. T1553/13 refers to a case in which a patent was revoked by the opposition division. The appeal fee and appeal were filed after the 2 months deadline for filing the appeal according to Article 108 EPC. The Board of appeal referred the following question to the Enlarged Board of Appeal: “If, after expiry of the time limit under Article 108, first sentence, EPC, a notice of appeal is filed and the fee for appeal is paid, is the appeal inadmissible or is it deemed not to have been filed?”
4. At least until the above questions are answered by the Enlarged Board of Appeal, the decision whether an appeal should be filed in case the deadline for filing the appeal has lapsed should be taken with greater care, as it is not certain that even the appeal fee will be reimbursed.
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