3.2.2 Missing or insufficient fee payments

In T 14/89 (OJ 1990, 432) the request for re-establishment, filed about 6 weeks before the expiry of the time limit for filing such request, had two deficiencies: the fee had not been paid and the facts to substantiate the request had not been filed. The board found that these deficiencies had been obvious and they could have been expected to be remedied within the time limit for re-establishment. The Enlarged Board of Appeal in G 2/97 (OJ 1999, 123) held that that decision related to the particular facts of that case and that there was no generally applicable principle to be derived therefrom.

In J 15/90 of 28.11.1994 the Legal Board of Appeal held that an insufficient payment of a fee did not result in a loss of rights if the error occurred 18 days before the period expired and the EPO failed to inform the applicant (see J 13/90, OJ 1994, 456). In T 923/95 a sum of DEM 1 200 instead of DEM 2 000 was mentioned in the fee payment voucher annexed to the notice of appeal filed by the appellants (opponents). In the board's view, the EPO, which had acknowledged receipt of the notice of appeal before the final date for payment of the appeal fee, could at the same time easily have notified the appellants by fax that the amount of DEM 800 was still outstanding. It was clearly contrary to the principle of good faith if in circumstances of this kind the EPO remained passive and allowed a time limit to expire (in this case, one week later), where the consequence of failure to observe the time limit was that the appeal was considered not to have been filed.

In T 296/96, only 50% of the appeal fee was paid before the expiry of the time limit under Art. 108, first sentence, EPC 1973. However, since the formalities officer invited the appellant to pay the remainder of the appeal fee and accepted its subsequent payment without comment, the appellant could assume in all good faith that the appeal was deemed to have been filed (Art. 108, second sentence, EPC 1973) and that, as a consequence, it was not necessary to file a request for re-establishment. The appellant should thus have been invited by the EPO to file such a request before the expiry of the one­year time limit under Art. 122(2), third sentence, EPC 1973. The appellant, who was misled by the action of the formalities officer, must, in accordance with the principle of the protection of legitimate expectations, be treated as having paid the appeal fee in time. The appeal was thus deemed to have been filed.

In T 161/96 (OJ 1999, 331) the board came to the conclusion that there was no basis for assuming an obligation on the part of the EPO to warn the party of an impeding loss of rights relating to an underpayment of 40% of the opposition fee.

J 2/94 involved a letter comprising a request for re-establishment without the necessary payment. According to the board the appellant could not have expected to be informed of the missing fee immediately after receipt of his request for re-establishment by the EPO. There had been no evident indication in the appellant's submission which made a clarification or reminder necessary. Indeed, the EPO could, in practice, often establish whether a specific fee had been paid only after the relevant time limit had expired, once the complete data on all payments made during that period was available.

In G 2/97 (OJ 1999, 123) the Enlarged Board of Appeal held that the principle of good faith did not impose any obligation on the boards of appeal to notify an appellant that an appeal fee was missing when the notice of appeal was filed so early that the appellant could react and pay the fee in time, if there was no indication - either in the notice of appeal or in any other document filed in relation to the appeal - from which it could be inferred that the appellant would, without such notification, inadvertently miss the time-limit for payment of the appeal fee.

In T 445/98, the board considered that, because the department which cashed the fee was not the same as the one which received the notice of appeal, the deficiency was not easy to identify and the time between payment of the appeal fee and expiry of the non-observed two-month time limit for filing the notice of appeal was too short, so that the opponent could not expect a warning.

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