European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2003:T109402.20030724|
|Date of decision:||24 July 2003|
|Case number:||T 1094/02|
|IPC class:||B65C 3/08|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Method of labeling articles having convex surfaces|
|Applicant name:||B & H MANUFACTURING COMPANY, INC.|
|Relevant legal provisions:||
|Keywords:||Reimbursement of appeal fee (no)|
Summary of Facts and Submissions
I. By a decision dated 28 March 2002 , European patent application No. 98 107 291.1 was refused (Article 97(1) EPC).
II. The appellant (applicant) lodged an appeal against that decision on 15 May 2002 and at the same time paid the appropriate appeal fee. Grounds of appeal have not been filed.
III. By a letter dated 6 August 2002, the appellant withdrew the European patent application and requested full or partial reimbursement of the appeal fee.
IV. The arguments given in support of this request are essentially as follows:
At the date of filing the request for reimbursement the Online European Patent Register failed to show that an appeal had been filed. Consequently the public cannot be affected by the appeal fee being reimbursed.
Since grounds of appeal have not been filed the appeal not involved any work to the EPO.
The only reason for lodging the appeal had been to allow time for filing a divisional application. Refusal to refund the appeal fee would thus increase the costs of the divisional application.
V. By a communication dated 14 March 2003, the Board informed the appellant of its provisional opinion that the request for full or partial reimbursement of the appeal fee would probably have to be refused.
Although invited to file observations on the communication within a period of two months, the appellant did not submit any comments.
Reasons for the Decision
1. An appeal fee may only be reimbursed in case an appeal is considered as "deemed not to have been filed" or, as specified in Rule 67 EPC, in the event of interlocutory revision or where the Board of Appeal deems an appeal to be allowable, if such reimbursement is equitable by reason of a substantial procedural violation.
1.1. Notice of appeal has been filed within the two months period according to Article 108 EPC. The appeal fee has been paid at the same time. The appeal thus cannot be considered as "deemed not to have been filed".
1.2. The present case, in which a statement of the grounds of appeal was not filed and in which, after the appeal was lodged, the application was withdrawn, clearly falls outside of the provisions of Rule 67 EPC (cf. e.g. T 543/99).
Consequently the grounds for the appeal given by the appellant, namely to allow time for filing of a divisional application, and the arguments given by the appellant in support of his request for reimbursement, according to which the public would not be misled by the reimbursement of the appeal fee and according to which, since no statement of the grounds of appeal has been filed, examination of the appeal has not involved any work to the EPO, are legally irrelevant.
2. From the above it follows that the request for full or partial reimbursement of the appeal fee has to be refused.
For these reasons it is decided that:
The request for full or partial reimbursement of the appeal fee is refused.