G1/18 - New referral to the Enlarged Board of Appeal

1. In accordance with Article 112(1)(b) EPC, the President of the European Patent Office has referred the following point of law concerning the interpretation of Article 108 EPC to the Enlarged Board of Appeal :


If a notice of appeal is filed and/or the appeal fee is paid after expiry of the two months time limit under Article 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed ?


2. This question is relevant with regard to the possible reimbursement of the appeal fee. Indeed, if the appeal is deemed not to have been filed,the appeal fee has been paid without legal basis and should therefore be reimbursed. On the contrary, if the appeal is considered inadmissible, the appeal fee will not be reiumbursed.


3. An analogous question had already been reffered to the Enlarged Board of Appeal by the  Boards of Appeal in 2014 under the referral numbers G1/14 and G2/14. However, in these cases, the question was not answered, since in G2/14, the patent application was abandoned.


The new referral case was triggered by recent decision T1897/17, in which the late-filed appeal was considered inadmissible.


This decision contradicts the majority interpretation in decisions of the Boards of Appeal, according to which, in such case, the appeal would be deemed not to have been filed.


In the referral brief, the President argues that the majority interpretation should be held up and the appeal be considered not to have been filed in such cases. Thus, the appeal fee should be reimbursed.


According to the President, this question is of particular importance, since the EPC includes a number of Articles with an analogous formulation to Article 108 EPC, in particular the Articles relating to : the request for examination, the filing of an opposition, the request for revocation or limitation of the patent, the request for review by the Enlarged Board of Appeal and the request for re-establishment of rights. In all of these situations, the request is deemed not to have been filed, and the fee is reimbursed in the case of a late payment of the fee.


Therefore, a decision of the Enlarged Board of Appeal according to which, in the case of a late payment of the appeal fee, the appeal would be inadmissible might have an impact not only on the appeal practice, but also on the manner all of the above analogous situations are handled at the EPO.

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