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T 1312/05 () of 4.1.2006

European Case Law Identifier: ECLI:EP:BA:2006:T131205.20060104
Date of decision: 04 January 2006
Case number: T 1312/05
Application number: 97305323.4
IPC class: A61B 6/10
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 52.416K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Fluoroscopy method and x-ray ct apparatus
Opponent name: -
Board: 3.2.02
Headnote: -
Relevant legal provisions:
Keywords: Reimbursement of appeal fee (no)


Cited decisions:
Citing decisions:

Summary of Facts and Submissions

I. This appeal is against the decision of the examining division dated 20 May 2005 to refuse European patent application No. 97 305 323.4.

The application was refused on the grounds that the subject-matter of claim 5 related to a method for the treatment of the human or animal body by surgery and was objectionable under Article 52(4) EPC.

II. On 20 July 2005, i.e. after the decision refusing the application was issued, an e-mail exchange took place between the primary examiner of the examining division and the appellant's representative, in which the representative proposed a new wording for the claim, but the examiner considered the proposed amendments to be unsatisfactory. In a further e-mail exchange between the examiner and the representative on 21 July 2005 the representative requested the examiner to delete claim 5 but was invited to file an appeal under Article 108 EPC instead.

III. On 25 July 2005 the appellant (applicant) lodged an appeal against the decision, paid the prescribed fee, and filed a statement of grounds of appeal.

IV. The appellant requested that the decision under appeal be set aside and that the application be granted on the basis of claims 1 to 4 filed with the letter dated 18 December 2004, and that the appeal fee be refunded.

V. The examining division rectified the decision but did not refund the appeal fee.

On 2 October 2005 the case was remitted to the board of appeal for a decision concerning the request for reimbursement of the appeal fee.

Reasons for the Decision

1. The only issue before the Board is the request for reimbursement of the appeal fee.

1.1 According to Rule 67 EPC a board of appeal shall order a reimbursement of the appeal fee if such reimbursement is equitable by reason of a substantial procedural violation.

1.2 The Board is unable to regard the behaviour of the examining division as amounting to a substantial procedural violation in the sense of Rule 67 EPC since the application was refused under Article 52(4) EPC after the objection under Article 52(4) EPC had been duly communicated to the applicant. Moreover, the appellant has submitted no facts or arguments in support of its request for reimbursement of the appeal fee.

1.3 Since the appellant has not appealed the decision in substance, and since no substantial procedural violation justifying a reimbursement of the appeal fee occurred, there is no reason for a refund of the appeal fee.


For these reasons it is decided that:

Reimbursement of the appeal fee is refused.

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