T 0348/08 (Inter-ring cross-connect/TELCORDIA) of 27.6.2008

European Case Law Identifier: ECLI:EP:BA:2008:T034808.20080627
Date of decision: 27 June 2008
Case number: T 0348/08
Application number: 97950970.0
IPC class: H04J 3/14
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 16.670K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Inter-ring cross-connect for survivable multi-wavelength optical communication networks
Applicant name: Telcordia Technologies, Inc.
Opponent name: -
Board: 3.5.03
Headnote: -
Relevant legal provisions:
European Patent Convention Art 108
European Patent Convention R 101(1)
European Patent Convention 1973 R 67
Keywords: Missing statement of grounds
Reimbursement of the appeal fee (no)
Catchwords:

-

Cited decisions:
T 0030/94
T 0038/97
T 0308/05
Citing decisions:
-

Summary of Facts and Submissions

I. This appeal is against the decision of the examining division refusing European patent application No. 97950970.0, which was originally filed as international application PCT/US97/23155 (publication number WO 98/25365 A).

II. The appellant filed a notice of appeal and paid the appeal fee on the same day.

In the notice of appeal the appellant requests that the decision be set aside and a patent be granted "on the basis of the last claims before the EPO or on the basis of amended claims that will be filed with the written statement setting out the grounds of appeal". The appellant further requests that the appeal be allowed under Article 109 EPC and that the appeal fee be reimbursed under Rule 67 EPC 1973. No reasons were given.

III. A written statement setting out the grounds of appeal was not filed within the four-month time limit provided for in Article 108 EPC.

IV. In a communication the board informed the appellant that it appeared that no statement setting out the grounds of appeal had been filed and that the appeal could therefore be expected to be rejected as inadmissible. The appellant was informed that any observations should be filed within two months.

V. The appellant filed no observations in response to the communication.

Reasons for the Decision

1. Since no statement setting out the grounds of appeal was filed within the time limit provided for in Article 108 EPC and since the notice of appeal does not contain anything that might be considered as such a statement, the appeal is to be rejected as inadmissible pursuant to Rule 10l(1) EPC.

2. The present case clearly falls outside the scope of Rule 103(1)(a) EPC (cf. Rule 67 EPC 1973). A prerequisite for the ordering of a reimbursement of the appeal fee pursuant to this rule is that either the examining division rectified its decision pursuant to Article 109 EPC or the board deems the appeal to be allowable. In the present case the examining division did not rectify its decision. Further, since the appeal is to be rejected as inadmissible (see point 1 above), the board will not enter into the issue of examining whether the appeal is allowable, Article 110 EPC.

Further, the case in which no notice of appeal has been filed or in which no notice of appeal is deemed to have been filed, which in the absence of any legal basis for its payment would have justified a reimbursement of the appeal fee, does not apply here (see point II above). Nor does the board see any exceptional circumstances which, if at all, might have justified a reimbursement of the appeal fee outside the scope of Rule 103(1)(a) EPC for reasons of equity, see T 308/05 (point 5 of the reasons), J 30/94, and J 38/97 (all not published in OJ).

Consequently, there is no legal basis for a reimbursement of the appeal fee.

ORDER

For these reasons it is decided that:

1. The appeal is rejected as inadmissible.

2. The request for the reimbursement of the appeal fee is rejected.

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