J 0021/80 (Late payment of appeal fee/Loss of right) of 26.2.1981

European Case Law Identifier: ECLI:EP:BA:1981:J002180.19810226
Date of decision: 26 February 1981
Case number: J 0021/80
Application number: -
IPC class: -
Language of proceedings: FR
Distribution: A
Download and more information:
Decision text in EN (PDF, 25.127K)
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Bibliographic information is available in: DE | EN | FR
Versions: OJ
Title of application: -
Applicant name: Heisel
Opponent name: -
Board: 3.1.01
Headnote: I. If the appeal fee has not been paid until after the expiry of the period of two months provided for in Article 108 EPC, the Registrar has good reason to consider that the appeal is inadmissible; he will therefore advise the appellant of the loss of a right, pursuant to Rule 69(1) EPC.
II. The appellant may apply for a decision of the Board of Appeal against the finding of the Registrar, pursuant to Rule 69(2) EPC.
III. If that finding is confirmed by the Board of Appeal, reimbursement of the appeal fee will be ordered.
Relevant legal provisions:
European Patent Convention 1973 Art 108 Sent 2
European Patent Convention 1973 R 69(1)
European Patent Convention 1973 R 69(2)
Keywords: Appeal fee/late payment
Late payment/appeal fee
Loss of right
Catchwords:

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Cited decisions:
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Citing decisions:
J 0037/97
J 0004/01
T 0520/89
T 0489/93
T 0229/98
T 0060/01
T 0585/08
T 2454/11
T 1663/12
T 2017/12
T 0220/13
T 1553/13
T 0236/15

Summary of Facts and Submissions

I. On 24 September 1978, the appellants filed an application for a European patent, which was published on 8 August 1979, on which date also a notification of publication of the Search Report appeared in the European Patent Bulletin.

II. By a decision dated 12 May 1980, received by the appellants on 19 May 1980, the Receiving Section held that no request for examination had been filed and no examination fee had been paid within the period of six months prescribed in Article 94(2), EPC, which had expired on 8 February 1980, and declared that the application for a European Patent must be deemed to have been withdrawn in accordance with Article 94 (3) EPC.

III. By a letter dated 2 July 1980, received on 24 July 1980, the appellants lodged a notice of appeal against the decision of 12 May 1980. A cheque for the amount of the appeal fee accompanied the notice of appeal. No Statement of Grounds of the appeal was received.

IV. On 15 December 1980, the Registrar made a finding that the appeal must be considered inadmissible, as the appeal fee had not been paid within the period prescribed by Article 108 EPC, and he notified the appellants accordingly, in accordance with Rule 69(1) EPC.

V. By a letter dated 23 December 1980, received on 20 January 1981, the appellants submitted that they had "paid the renewal fee for the third year with the appropriate surcharge for late filing" and they expressly sought a decision under Rule 69(2) EPC.

Reasons for the Decision

1. It appears from the file of the case that a cheque for the amount of the appeal fee (FF 1330) was received on 24 July 1980, attached to the notice of appeal. The appellants have provided no evidence or argument to the contrary and, in their letter of 23 December 1980, appear to have confused the appeal fee with the renewal fee.

2. In accordance with Article 8(1)(c) of the Rules relating to Fees, when a cheque is sent in payment of fees, the date of payment is the date of receipt by the Office. Consequently, the appeal fee paid on 24 July 1980 had been paid after the expiration of the period of two months prescribed by Article 108 EPC, which, by virtue of Rule 78(3) EPC, had ended on 22 July 1980.

3. The Registrar had good reason to find, as he did on 15 December 1980, in accordance with Rule 69(1) EPC, that the appeal dated 2 July 1980 must be considered not to have been lodged.

4. As there is no admissible appeal in existence, the appeal fee paid late must be reimbursed.

ORDER

For these reasons it is decided that:

1. The application for a decision in accordance with Rule 69(2) EPC is without foundation.

2. The appeal against the Decision of the Receiving Section dated 12 May 1980 is inadmissible.

3. Reimbursement of the appeal fee is ordered.

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