G 0001/18 (Filing an appeal) of 18.07.2019

European Case Law Identifier

ECLI:EP:BA:2019:G000118.20190718

Date of decision

18 July 2019

Case number

G 0001/18

Petition for review of

Application number

IPC class

Language of proceedings

French

Distribution

Published in the EPO's Official Journal (A)

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Decision in French

OJ versions

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Abstracts for this decision

Application title

Applicant name

Opponent name

Board

Headnote

1. An appeal is deemed not to have been filed in the following cases:

(a) where notice of appeal was filed within the two-month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two month time limit;

(b) where notice of appeal was filed after expiry of the two month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two month time limit;

(c) where the appeal fee was paid within the two month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND notice of appeal was filed after expiry of that two month time limit.

2. In the cases referred to in answers 1(a) to (c), reimbursement of the appeal fee is to be ordered ex officio.

3. Where the appeal fee was paid within or after the two month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND no notice of appeal was filed at all, the appeal fee is to be reimbursed.

Relevant legal provisions

European Patent Convention Art 108 European Patent Convention Art 108 1973 European Patent Convention Art 112(1)b)European Patent Convention R 101(1)European Patent Convention R 65(1) 1973

Keywords

Appeal deemed filed
Appeal admissible
Appeal fee reimbursement

Catchword

Cited cases

G 0001/83 G 0005/83 G 0006/83 G 0001/86 G 0001/88 G 0001/90 G 0006/91 G 0002/02 G 0003/02 G 0001/03 G 0002/07 G 0001/08 G 0002/08 G 0003/08 G 0001/12 G 0002/12 G 0001/14 R 0002/10 R 0018/13 R 0004/15 J 0002/78 J 0021/80 J 0008/82 J 0016/82 J 0024/87 J 0019/90 J 0004/91 J 0009/98 J 0010/98 J 0005/15 T 0041/82 T 0128/82 T 0105/85 T 0047/88 T 0371/92 T 0473/93 T 0489/93 T 0748/93 T 0696/95 T 0742/96 T 0266/97 T 1100/97 T 1173/97 T 0445/98 T 0806/99 T 0778/00 T 1048/00 T 0060/01 T 0079/01 T 1200/01 T 0122/02 T 0260/06 T 1530/06 T 1465/07 T 0585/08 T 2056/08 T 1479/09 T 1926/09 T 1943/09 T 1265/10 T 1289/10 T 1535/10 T 1644/10 T 2210/10 T 0377/11 T 0742/11 T 1234/11 T 1486/11 T 2274/11 T 0861/12 T 2017/12 T 1553/13 T 1954/13 T 0181/14 T 1325/15 T 1946/15 T 0198/16 T 1823/16 T 2406/16 T 2450/16 T 0327/17 T 1897/17 T 2520/17

Citing cases

R 0001/18 J 0012/18 J 0013/18 J 0014/18 J 0008/19 J 0013/19 J 0003/20 J 0008/20 J 0009/20 J 0014/21 T 0853/16 T 2569/16 T 0488/18 T 0590/18 T 0600/18 T 0767/18 T 0851/18 T 1322/18 T 2108/18 T 2422/18 T 2609/18 T 2620/18 T 3023/18 T 0225/19 T 0317/19 T 1060/19 T 1222/19 T 1474/19 T 1995/19 T 0444/20 T 0669/20 T 1146/20 T 1214/20 T 1773/20 T 1917/20 T 0071/21 T 0637/21 T 0650/21 T 0953/21 T 1049/21 T 1513/21 T 1678/21 T 2170/21 T 1553/22 T 1855/22 T 2447/22 T 0083/23 T 0178/23 T 1278/23 T 1286/23 T 0700/25

C. Conclusion

Having regard to its findings above, the Enlarged Board of Appeal concludes that, whatever the scenario at issue, the "majority" view in the boards' case law is applicable and the "minority" view is no longer to be applied.

The point of law referred to the Enlarged Board of Appeal by the President of the EPO is answered as follows:

1. An appeal is deemed not to have been filed in the following cases:

(a) where notice of appeal was filed within the two-month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two month time limit;

(b) where notice of appeal was filed after expiry of the two-month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two-month time limit;

(c) where the appeal fee was paid within the two-month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND notice of appeal was filed after expiry of that two-month time limit.

2. In the cases referred to in answers 1(a) to (c), reimbursement of the appeal fee is to be ordered ex officio.

3. Where the appeal fee was paid within or after the two-month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND no notice of appeal was filed at all, the appeal fee is to be reimbursed.