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The boards have advanced a variety of reasons for deciding that a reimbursement of the appeal fee was not equitable. These include the following: (i) the conduct of the appellant was such as to render reimbursement of the appeal fee inequitable, (ii) the substantial procedural violation had not been sufficiently closely linked to the need to pay the appeal fee, and (iii) the substantial procedural violation had not been the determining factor in the decision under review or the appeal decision.
In J 22/85 (OJ 1987, 455) the board did not consider a reimbursement of the appeal fee to be justified because the appellant had failed to provide the Receiving Section with the evidence subsequently submitted in the appeal proceedings.
In J 4/09, the board said that, as a rule, an applicant could be regarded as behaving inequitably if it made no use of opportunities to participate in the initial proceedings. In this case, it had not reacted to the Receiving Section's communication; only in its statement of grounds for appeal had it drawn attention to an obvious inconsistency.
In J 18/96 (OJ 1998, 403) the Receiving Section had failed to observe the provisions concerning examination on filing. The proceedings were therefore marred by a procedural violation. Although the appeal was allowed on the ground, inter alia, of a procedural violation, the reimbursement of the appeal fee was not equitable because the appellants themselves had contributed to the failure of the proceedings before the Receiving Section.
In T 167/96 the impugned decision did not meet the minimum requirements for a reasoned decision. Although there was no doubt that this lack of reasoning amounted to a substantial procedural violation, the board did not consider that a refund of the appeal fee was equitable. Indeed, it was clear from the file history that the proprietor had been afforded a very considerable period of time by the department of first instance to file appropriate amendments, but had not replied. It then filed on appeal a set of amendments which, it believed, overcame the outstanding objections. In the judgment of the board the appellant had availed himself of the appeal procedure to file necessary amendments which the opposition division had sought in vain over a period of years to elicit from him. The decision was set aside and the case remitted to the department of first instance pursuant to Art. 10 RPBA 1980 (see also T 908/91).
In T 1216/02 the search division had sent a supplementary European search report to the applicant (appellant) with a wrong citation which was deceptively similar to the correct one. The examining division had refused the application because of the applicant's "incomprehensible" response to its second communication. The appellant had requested that the examination procedure be resumed to enable him to replace his response with a response based on the right document. The board held that, albeit for reasons outside the knowledge and control of the examining division, the refusal decision had been based on evidence on which the applicant had not had an opportunity - viewed objectively - to present his comments. This constituted an objective substantial procedural violation within the meaning of R. 67 EPC 1973. However, the board did not deem reimbursement of the appeal fee equitable, because the appellant should have facilitated further substantive examination in the event of remittal or interlocutory revision by including in his statement of grounds of appeal a substantive response to the examining division's communication, based on the document which, at the time when the appeal was filed, he had known to be correct.
In T 893/90 the contested decision to refuse the application on the grounds of lack of novelty was based primarily on document 1, on which, in contrast to document 2, the appellant had had adequate opportunity to put forward comments. The board stated that the decision under appeal had been fully reasoned, and that the procedural violation as regards the reliance on document 2 was thus not sufficiently closely linked to the need to pay an appeal fee for it to be equitable to reimburse the fee (for a case where the appellant had no choice but to appeal on other issues unaffected by a procedural irregularity, see T 4/98, OJ 2002, 139.)
In T 41/97, a refund was not equitable because the procedural error (refusal of interlocutory revision prior to receipt of the statement of grounds of appeal and before the expiry of the period for filing it) was not the reason the appeal had been filed.
In T 601/92 the opposition division had not commented, either in a communication or in its decision, on auxiliary request (5) submitted by the patent proprietor in good time before the decision was issued. Because auxiliary request (2), which had been submitted in the appeal proceedings and which preceded auxiliary request (5), was allowed, the board did not see any reason, despite the procedural violation, to reimburse the appeal fee, as this would not have been equitable.
In T 219/93 the board remitted the case to the department of first instance since it clearly called for revision under Art. 109 EPC 1973. The contested decision had also been inadequately reasoned on one point within the meaning of R. 68(2) EPC 1973. Nevertheless, the board decided not to reimburse the appeal fee because the refusal had been made principally on other grounds, and the board did not consider the procedural violation to be so substantial within the meaning of R. 67 EPC 1973 that the reimbursement would be equitable.