14-15 November 2018
|European Case Law Identifier:||ECLI:EP:BA:2005:T102605.20051111|
|Date of decision:||11 November 2005|
|Case number:||T 1026/05|
|IPC class:||B30B 11/12|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Press for moulding clay manufactured articles|
|Applicant name:||Bongioanni Macchine S.p.A.|
|Opponent name:||Favole S.r.l.|
|Relevant legal provisions:||
|Keywords:||Reimbursement of the appeal fee when the appeal is withdrawn (no)|
Summary of Facts and Submissions
I. The appellant (opponent I) lodged an appeal against the interlocutory decision of the Opposition Division dated 10 June 2005 maintaining European patent No. 0 847 849 in amended form.
The appeal was filed by fax, dated 4 August 2005. This fax was confirmed through a letter of the same date, and the appeal fee was paid in due time.
II. The appellant requested that "the decision to maintain the patent in its form as amended during the Opposition Proceedings is set aside to the extent that the subject-matter of the patent is not patentable within the terms of Art. 54 and 56 EPC, and that the patent is revoked, and in the case in which the Board of Appeal envisages not to accept the request set forth above, oral proceedings under Art. 116 EPC is allowed to take place".
III. No statement of grounds of appeal was filed.
IV. By fax dated 18 October 2005, the appellant stated that "the appellant withdraws the appeal filed on 4.08.2005". In the same letter it was further requested that the appeal fee be refunded. This fax was confirmed through a letter of the same date.
V. No statement of grounds for the refund of the appeal fee was filed.
Reasons for the Decision
1. Withdrawal of the appeal
With the withdrawal of the appeal the appellant withdrew automatically also all its requests on appeal (see paragraph II).
Therefore, no request for oral proceedings remains in the present case, which can be decided without appointing them.
2. Reimbursement of the appeal fee
2.1 In the present case the appellant submitted no grounds for the reimbursement of the appeal fee.
2.2 According to Rule 67 EPC, two conditions have to be met for an appeal fee to be reimbursed, where no interlocutory revision (under Article 109 EPC) took place: the appeal must be deemed allowable, and the reimbursement must be deemed equitable by reason of a substantial procedural violation.
Interlocutory revision did not take place.
No objection regarding a procedural violation was raised by the appellant.
Finally, there is no basis in Rule 67 EPC for ordering refund of the appeal fee merely for the reason that the appeal is withdrawn (cf. T 41/82, OJ EPO 1982, 256). The conditions of Rule 67 EPC for reimbursement of the appeal fee are thus not met.
2.3 The present decision was made necessary because of the request for reimbursement of the appeal fee.
For these reasons it has been decided that:
The request for reimbursement of the appeal fee is refused.