If no written notice of appeal has been filed within the time limit the question has arisen whether merely paying the fee for appeal constitutes a valid means of lodging an appeal. In T 275/86 the board had held that payment with EPO Form 4212 05.80 should be accepted as such a notice since it contained essentially the same information as was required in a notice of appeal within the meaning of R. 64 EPC 1973. However, the board in J 19/90 stated that merely paying the fee for appeal did not constitute a valid means of lodging an appeal. This applied even if the object of the payment was indicated as being a "fee for appeal" relating to an identified patent application and the form for payment of fees and costs was used. This was confirmed in T 371/92 (OJ 1995, 324), T 445/98, T 514/05 (OJ 2006, 526) and T 778/00 (OJ 2001, 554), where the board also added that the failure to indicate the provisions of R. 65 EPC 1973 in the annex to the communication dealing with the possibility of appeal did not make this incomplete or misleading. This applies equally to inter partes proceedings (T 1926/09); it is in the public interest in both ex parte and inter partes proceedings to be informed with certainty about the applicant's intention of challenging a first-instance decision.
In T 1943/09, the board held that the only possible conclusion in the light of the provisions of the EPC was that payment of the appeal fee did not suffice to lodge a valid appeal. The legislative amendment under the EPC 2000 whereby R. 99(1) EPC lists the items making up the obligatory content of the notice of appeal removed any doubt there might have been as to the fact that the mere payment of the appeal fee cannot replace the notice of appeal, even if it is effected within two months of notification of the decision against which an appeal is to be filed.