9.3.4 Inadmissible or deemed not to be filed – diverging case law and G 1/18

In accordance with Art. 112(1)(b) EPC, and as a result of diverging case law, the President of the European Patent Office has referred the following point of law to the Enlarged Board of Appeal: "If notice of appeal is filed and/or the appeal fee is paid after expiry of the two-month time limit under Article 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed?" (see Communication from the Enlarged Board of Appeal concerning case G 1/18, OJ 2018, A71). This question has previously been submitted to the Enlarged Board in G 1/14 and G 2/14 – however the question was not addressed because in G 1/14 the referral was found to be inadmissible and in G 2/14 the patent application was abandoned.