Zusammenfassung von EPC2000 R 139 für die Entscheidung T0130/19 vom 11.01.2023

In T 130/19 the appellant (patent proprietor) filed a notice of appeal within the two- month time limit. However, due to the erroneous indication "not specified" in the "Method of payment" box on Form 1038E, the debit order for the payment of the appeal fee was not carried out before expiry of that time limit. The appellant requested a correction under R. 139, first sentence, EPC of Form 1038E. According to the board, it was undisputed that the requested correction fulfilled the conditions set out in G 1/12. The board referred to T 317/19, which relied on G 1/12 and allowed a correction under R. 139 EPC in a similar factual situation concerning an appeal in an ex parte case. The board did not see why the reasoning in T 317/19 should not apply to an appeal in an inter partes case, since the ruling of G 1/12 clearly applied to both ex parte and inter partes cases. Moreover, T 3098/19, also applying G 1/12, authorised a correction under R. 139 EPC of the amount of the appeal fee in an inter partes case. In the case at issue, the board was of the view that the indication "011 Appeal fee for an appeal filed by an entity other than those referred to in R. 6(4) and (5) EPC" in original Form 1038E showed that the intention of the patent proprietor was to pay the appeal fee at the same time as filing the notice of appeal. The request for correction was filed on the day that the appellant was informed by a telephone call from the registrar that the payment method had not been specified, i.e. without delay. The board concluded that the request for correction of Form 1038E was to be allowed and that the appeal was therefore deemed to have been timely filed.