Until 31 March 2008, under R. 31(1) EPC 1973 and then the new R. 45 EPC 2007, any European patent application comprising more than ten claims incurred payment of a claims fee in respect of each claim over and above that number. With effect from 1 April 2008 the number of fee-exempt claims was increased to fifteen. For international applications entering the European phase the corresponding provisions are R. 110 EPC 1973 and R. 164 EPC.
The Legal Board of Appeal ruled in case J 9/84 (OJ 1985, 233) that R. 31(1) EPC 1973 was to be interpreted as meaning that claims numbered 1 to 10 upon filing of the European patent application - or transmittal to the EPO of the international application under the PCT - were exempt from fees, and that claims numbered 11 onwards were not. Accordingly, abandoning a fee-exempt claim after filing - or transmittal - did not have the effect that its fee exemption was transferred to another claim.