T 1703/12 (Reimbursement of the appeal fee/APPLE) of 14.3.2013

European Case Law Identifier: ECLI:EP:BA:2013:T170312.20130314
Date of decision: 14 March 2013
Case number: T 1703/12
Application number: 07012976.2
IPC class: G06F 17/30
H04L 29/06
H04L 29/08
Language of proceedings: EN
Distribution: C
Download and more information:
Decision text in EN (PDF, 94.592K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Accessing media across networks
Applicant name: APPLE INC.
Opponent name: -
Board: 3.5.01
Headnote: -
Relevant legal provisions:
European Patent Convention Art 109(1)
European Patent Convention R 103(1)(a)
Keywords: Interlocutory revision - request for reimbursement of the appeal fee - competence of the Board of Appeal to decide (no)
Catchwords:

-

Cited decisions:
G 0003/03
T 0021/02
T 0242/05
Citing decisions:
T 2134/12
T 2008/14

Summary of Facts and Submissions

I. European patent application 07 012 976.2 was refused by the examining division by decision posted on 20 January 2012. On 21 March 2012, a notice of appeal was filed and the appeal fee was paid on the same day. On 29 May 2012, the appellant filed the statement setting out the grounds of appeal and requested that a patent be granted on the basis of the main request or the first or second auxiliary requests filed therewith.

II. On 12 June 2012, the examining division rectified the decision under appeal by crossing the respective box on Form 2701. This was communicated to the appellant on 27 June 2012, by the use of Form 2710, which stated that following the appeal of 29 May 2012, rectification was ordered and the decision dated 20 January 2012 was set aside.

III. By letter of 13 July 2012, the appellant requested that, in view of the rectification notification dated 27 June 2012, the appeal fee be reimbursed under Rule 103(1)(a) EPC. The examining division referred this request to the Board of Appeal.

IV. On 19 September 2012, the Board issued a communication expressing its view that, following decisions T 21/02 and T 242/05, it was not competent to decide on this request and that it intended to remit the case to the department of first instance. The appellant was given a period of 2 months to comment. However, no comments were submitted.

Reasons for the Decision

1. According to G 3/03 (OJ EPO 2005, 344), in the event of interlocutory revision under Article 109(1) EPC, the department of first instance whose decision has been appealed is not competent to refuse a request of the appellant for reimbursement of the appeal fee, but has to submit this request to the board of appeal. This holds true if the request for reimbursement of the appeal fee was filed before the examining division granted interlocutory revision.

2. In G 3/03 the Enlarged Board further stated that Rule 67 EPC 1973 (now Rule 103(1)(a) EPC) provided that, in the event of interlocutory revision, reimbursement of the appeal fee should be ordered by the department of the first instance whose decision has been impugned, "if such reimbursement was equitable by reason of a substantial procedural violation". From the wording of this provision it followed that the department of the first instance had to examine whether the requirements for reimbursement of the appeal fee were met, regardless of whether or not the appellant had actually submitted such a request. If the department of the first instance came to the conclusion that these requirements were not met, it could not order reimbursement of the appeal fee. In the absence of a request for reimbursement of the appeal fee, the decision of the department of the first instance granting interlocutory revision pursuant to Article 109(1) EPC would make no mention of the issue of reimbursement of the appeal fee, and the appellant would not be adversely affected by the decision (point 3 of the reasons). In case of interlocutory revision and reimbursement of the appeal fee not being contentious, the appeal was not remitted to, and thus would not be pending before, a board of appeal, the decision under appeal having been set aside and the appeal allowed by the department of the first instance (point 2 of the reasons).

3. In the present case, the request for reimbursement of the appeal fee was only filed after interlocutory revision had been granted. At that time the appeal procedure was no longer pending, because the appeal had been fully dealt with and the appellant was not adversely affected. As a consequence, the request was submitted in the absence of a pending appeal and cannot, hence, constitute an ancillary issue to be dealt with in appeal proceedings. The reimbursement of the appeal fee is linked to the appeal procedure and cannot be separated from it.

4. That being so, in the case at hand no appeal exists from a decision of a department of first instance for which the boards of appeal are responsible pursuant to Article 21(1) EPC and the Board is not empowered to decide on the request for reimbursement. Since no appeal procedure is pending, the Board can only remit the case to the department of first instance (following decisions T 21/02 of 20 February 2006 and T 242/05 of 20 September 2006).

ORDER

For these reasons it is decided that:

The case is remitted to the department of first instance for further prosecution.

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