European Round-Table on Patent Practice (EUROTAB)
|European Case Law Identifier:||ECLI:EP:BA:2013:T149313.20131128|
|Date of decision:||28 November 2013|
|Case number:||T 1493/13|
|IPC class:||F17C 9/02
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||Mobile LNG regasification plant|
|Applicant name:||ROS ROCA INDOX EQUIPOS E INGENIERIA, S.L.|
|Relevant legal provisions:||
|Keywords:||Withdrawal of the appeal - reimbursement of the appeal fee (no)|
Summary of Facts and Submissions
I. The appeal is directed against the decision of the Examining Division posted on 20 December 2012.
II. The appellant filed a notice of appeal on 19 February 2013 and paid the appeal fee on the same day.
III. By communication of 22 August 2013 the registry of the board informed the appellant that it appeared from the file that the written statement of grounds of appeal had not been filed, and that it was therefore to be expected that the appeal would be rejected as inadmissible pursuant to Article 108, third sentence, EPC in conjunction with Rule 101(1) EPC. The appellant was informed that any observations had to be filed within two months of notification of the communication.
IV. By telefax dated 18 September 2013 the appellant withdrew the appeal and requested the appeal fee to be reimbursed.
V. On 20 September 2013 the board informed the appellant by telephone that the request for reimbursement of the appeal fee could be expected to be refused, since none of the conditions set out in Rule 103(1)(a) and (b) EPC were met. This view was reiterated in the letter of the registry of the board dated 25 October 2013.
Reasons for the Decision
1. The appellant's withdrawal of its appeal immediately and automatically terminated the appeal proceedings. Therefore, no decision on the admissibility of the appellant's appeal had to be taken. However, the appellant's request for reimbursement of the appeal fee is a procedural issue in respect of which the appeal procedure is to be continued (cf. G 8/91, OJ EPO 1993, 346, points 3 and 5 of the Reasons) and which has to be decided.
2. The appellant filed a notice of appeal and paid the appeal fee within the time limit set in Article 108, first and second sentence, EPC. Therefore, an appeal has been properly filed pursuant to Article 108, first and second sentence, EPC and has thus come into existence (as opposed to a situation where the appeal is deemed not to have been filed). Consequently, the reimbursement of the appeal fee is governed by Rule 103(1) EPC, which stipulates that the appeal fee shall be reimbursed:
(a) 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, or
(b) if the appeal is withdrawn before the filing of the statement of grounds of appeal and before the period for filing that statement has expired.
3. In the present case interlocutory revision has not occurred nor has any substantial procedural violation occurred or been alleged to have occurred. Thus, the conditions for reimbursement stipulated in
Rule 103(1)(a) EPC are not fulfilled.
4. The condition of Rule 103(1)(b) EPC is also not fulfilled in the present case, because the appellant's declaration to withdraw the appeal was received on 18 September 2013, i.e. more than four month after the expiry of the time limit for filing a written statement setting out the grounds of appeal pursuant to Article 108, third sentence, EPC.
5. Thus, there is no reason for the appeal fee to be reimbursed.
For these reasons it is decided that:
The request for reimbursement of the appeal fee is refused.