Zusammenfassung von EPC2000 Art 122 für die Entscheidung T2012/20 vom 11.11.2022

In T 2012/20 the appellant's representative had instructed the assistant via email on 13 November 2020 to promptly file an appeal. It was also indicated in the email that filing the appeal well before the expiry of the time limit would allow any possible shortcomings to be addressed, if needed. The appeal was filed on the same day and an appeal fee was paid. The board concluded from the evidence presented that the assistant knew how to file the appeal and how to pay the appeal fee, but, for whatever reason, paid the reduced fee instead of the normal fee. The board referred to the EPO's Frequently Asked Questions (FAQ) section on its home page concerning Art. 2(1), item 11 RFees relating to the reduction of the appeal fee. The question "What does the EPO do if a declaration appears to be missing on the date of payment of the reduced fee for appeal?" was answered as follows: "If an appellant pays the reduced amount of the appeal fee without filing the necessary declaration, the EPO will proceed as follows: If the period for paying the appeal fee has not yet expired, a warning letter will be issued to inform the appellant that no declaration has been received by the EPO. If the time limit under Article 108 EPC has not yet expired, the appellant can either pay the missing amount to the full fee or file the missing declaration. Should the appellant omit to pay the missing amount or not file the declaration within the time limit under Article 108 EPC, the appeal may be deemed not to have been filed or the appeal may be considered inadmissible." This information had already been available when the notice of appeal was filed in the present case. According to the board, it was evident that a representative reading this information would expect to be promptly warned if a deficiency was apparent. In the case at hand, such a deficiency was readily recognised by the EPO, as could be seen from EPO Form 2901. This form was generated on 17 November 2020 (date at the bottom of the form), but post-dated 24 November 2020 - which is the normal procedure within the EPO (see, for example, G 12/91, point 9.1 of the Reasons) - and sent via registered mail. It was received by the appellant on 9 December 2020. Although registered mail was the official way of communication of the EPO, a representative reading the above response of the EPO to the FAQ would have expected the warning to be forwarded by the fastest possible means, especially if the time limit for paying the appeal fee had not yet expired, but was close to expiry. In the board's opinion, this was all the more applicable, since at that time the restrictions due to the COVID-19 pandemic were highly likely to impact the normal functioning of postal services. In particular, the EPO itself used electronic means, namely the Zoom platform, to hold oral proceedings, and it was thus very surprising that appropriate electronic means were not used to warn applicants. In addition, the change in format of oral proceedings before the examining division to videoconference was announced by telephone on 9 July 2020 and this was promptly confirmed via email by the appellant. Registered mail was not used in either case. The fact that the representative specifically indicated in her email to the assistant that the appeal should be filed some time before expiry of the time limit to allow possible shortcomings to be overcome indicated that the representative probably relied on the information provided by the EPO. In view of all these factors (COVID-19, information provided in FAQ, electronic means previously used by the EPO, filing of appeal more than two weeks before the deadline), the board considered that in the particular situation of the case at hand there were exceptional circumstances leading to the conclusion that due care had been taken and consequently justifying the re-establishment of rights. Consequently, the appeal was deemed to have been filed.