Zusammenfassung von EPC2000 R 139 für die Entscheidung T1678/21 vom 14.02.2023

In T 1678/21 the appellant (applicant) had filed a notice of appeal within the time limit prescribed in Art. 108 EPC. The notice, filed on 6 September 2021, included instructions on Form 1038E to debit the reduced appeal fee. Moreover, the final sentence of the notice of appeal read as follows: "Any additional fees that may be required can be debited from our deposit account [xxx]". Following a communication from the board, the appellant identified that these instructions were erroneous as the regular appeal fee should have been paid. The appellant filed three requests to undo the consequences of this error, including a request for correction under R. 139 EPC. The board referred to T 152/82, which it understood as holding that obvious errors in the amount of EPO fees in debit orders under the ADA need not be corrected if the intention to pay the correct amount was clear. Although not expressly mentioned in T 152/82, it was obvious to the present board that this intention had to be clear before expiry of the appeal period. According to the board, both T 152/82 and the summary of the subsequent case law endorsing it given in T 1474/19 could be followed, but only under the condition that it was known to a board from the file as it stood at the end of the appeal period that the appellant, at the point in time of authorising the debit of the reduced appeal fee, was not entitled to the reduction of the appeal fee under R. 6(4) and (5). In the case in hand the board could not spot the appellant's failure to qualify as an SME from the file as it stood at the end of the appeal period. The board noted in its Catchword that from the company name of an appellant alone it could generally not be derived that the appellant did not meet the conditions of R. 6(4) and (5) in conjunction with the Commission Recommendation 2003/361/EC of 6 May 2003 for payment of the reduced appeal fee. This applied even if a company name was well known. In the absence of proof of the appellant's legal nature in the file at the end of the appeal period, its statements made with a view to paying the appeal fee, both in the notice of appeal and Form 1038E, could not be assessed as reflecting the clear intention to pay the regular appeal fee and thus, effectively, as payment of that fee pursuant to the principles of T 152/82. In its Catchword, the board also stated that an appellant who gave a debit order for payment of the reduced appeal fee even though it clearly did not meet the conditions of R. 6(4) and (5) EPC committed an obvious mistake within the meaning of J 8/80 and G 1/12. The board then turned to the appellant's request for correction under R. 139, first sentence, EPC and discussed a selection of decisions handed down since 1980 that set out general principles and specific criteria governing corrections under this provision. According to the board, the four criteria for assessing whether a request for correcting a document filed with the EPO pursuant to R. 139 EPC could be granted were "principles" (a) to (c) of G 1/12, i.e. essentially those of J 8/80, points 4 and 6: (a) the correction must introduce what was originally intended; (b) where the original intention is not immediately apparent, the requester bears the burden of proof, which must be a heavy one. The same applies, pursuant to J 8/80, point 6, where the making of the mistake is not self-evident; and (c) the error to be remedied may be an incorrect statement or an omission, complemented by criterion (d) balancing of the public interest in legal certainty with the interest of the party requesting correction, with the factors (i.e. sub-criteria of this criterion) relevant to the specific case. As a rule, criteria (a) to (d) were to be assessed in the order (c), (a), if applicable, together with (b), and (d). The board concluded that all the criteria for correction applicable in this case had been met. Furthermore, when the erroneous instruction to debit the reduced appeal fee was given, there were sufficient funds in the deposit account for the regular appeal fee to be debited. Thus, payment of the regular fee was deemed to have been made retroactively on 6 September 2021.