8. Refund of the fee for re-establishment

In J 7/93 the EPO did not tell the appellant to ignore its previous communications issued in connection with a time limit supposed to be missed; this would have enabled the appellant to recognise that its request for re-establishment was unnecessary. Instead, the EPO continued the proceedings for re-establishment of rights and finally refused restitutio without taking into account the fact that these proceedings had been unnecessary from the very beginning. The board found that this amounted to a substantial procedural violation within the meaning of R. 67 EPC 1973. The board held that it was equitable to order reimbursement of the appeal fee, even though the appellant had not applied for this (J 7/82, OJ 1982, 391). The board held that since there was no longer any legal ground to request re-establishment of rights, the fee for re-establishment was wrongly accepted by the EPO and, therefore, had to be refunded to the appellant (confirming J 1/80 and T 522/88).

In T 1198/03 the respondent (opponent) sent his reply to the appellant's statement of grounds of appeal one day late and requested that, if the board did not otherwise consider the reply, he be re-established into the time limit for filing the reply. The board decided to consider the respondent's reply. The restitutio request was therefore redundant. Distinguishing the present case from other cases, where an application for re-establishment of rights was equally redundant but the boards did reimburse the corresponding fee, the board stated that, in the case before it, restitutio was not, as a matter of principle, applicable as a remedy, and that in such a situation a party should not be able to reap cost benefits from the redundancy of a restitutio request filed on an auxiliary basis. Otherwise parties might be encouraged to file such inapplicable requests.

In contrast, in T 971/06 the Office had committed mistakes which caused the request for re-establishment. As the appealed decision of the examining division did not comply with Art. 97(2) EPC 1973, it was considered invalid by the board. The examination should therefore have been re-opened without an appeal. Furthermore, the appellant was misled by the examining division for several months as to the procedure for remedying the mistake. When the examining division finally issued a communication refusing its request to correct the decision, the appellant filed an appeal, a statement of grounds of appeal and requests for re-establishment. The board considered these requests unnecessary, but an understandable reaction. It found that the fees paid in respect of these requests had to be refunded.

In T 46/07, the board found that, if the fee for re-establishment of rights is paid after expiry of the two-month period laid down in Art. 122(2) EPC 1973, the application for re-establishment of rights does not come into existence and therefore the fee must be refunded even without a respective request.

In T 2454/11, the board observed that, in earlier board decisions taken in the light of G 1/86, requests from an appealing opponent for re-establishment of rights had been regarded as "devoid of purpose" or "not validly filed" and the fee refunded (see e.g. T 520/89, T 266/97). The board endorsed the view taken more recently in T 1026/06 that the fee was not refundable. It could only be reimbursed if it had been paid for no legal reason or if a refund was required by a legislative provision. Under Art. 122(3) EPC, a request for re-establishment of rights was not deemed to be filed until the fee had been paid, so payment was required for the request to have effect. There had therefore been a legal reason for its payment and there was no provision requiring a refund.

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