5.2. Beschwerdegebühr

In T 553/25 the applicant had, on 31 January 2025, filed a notice of appeal and paid the appeal fee for persons referred to in R. 7a(2)(a) to (d) EPC as provided for in Art. 2(1), item 11 RFees. By communication of the Examining Division dated 6 February 2025 (the "Communication"), the applicant was informed that the initial formal check of the appeal revealed that the reduced fee had been paid but a declaration that the appellant was a natural person or an entity according to R. 7b EPC had not been filed. Failure to file such declaration within the time limit under Art. 108 EPC would result in the appellant not being eligible for the reduced fee.

The board noted that the Communication relied, inter alia, on the notice from the EPO dated 18 December 2017 (the "Notice") concerning the reduced fee for appeal for an appeal filed by a natural person or an entity referred to in R. 6(4) EPC, now R. 7a and 7b EPC. The Notice introduced a formal requirement for the valid payment of the fee for appeal and thereby also an additional requirement for lodging an appeal. However, there was no legal basis in the EPC for such a requirement, nor was the board aware of any provision empowering the EPO to adopt such regulations, even less so at the level of a notice. Art. 2(1), item 11 RFees referred to R. 7a(2)(a) to (d) EPC, to define the persons and entities eligible to pay the reduced fee for appeal. This had no legal implications beyond giving a definition of who is eligible for the reduced fee for appeal.

There was no reference in Art. 2(1), item 11 RFees to R. 7b(1) EPC, which establishes a requirement to declare eligibility to a reduction in fees, in a different context. According to R. 7b(1) EPC, such a declaration is required if persons or entities according to R. 7a(2)(a) to (d) EPC wish to avail themselves of a reduced fee according to R. 7a(1) or (3) EPC. These provisions concern fees to be paid for patent applications up to the grant of a patent. R. 7b EPC does not apply to the payment of the reduced fee for appeal, be it directly or by way of reference. Even less can R. 7b EPC apply to the fee for appeal by way of a mere analogy.

According to the board, it followed that there was no legal basis for a prior declaration of eligibility as a prerequisite for a valid payment of the reduced fee. A declaration of eligibility might be seen as a form of evidence supporting a payment of the reduced fee for appeal. Indeed, when examining the admissibility of an appeal, a board may require appellants who pay a reduced fee to provide evidence that they fall into one of the categories of persons and entities listed in R. 7a(2)(a) to (d) EPC. However, the EPO has no power to define what is to be accepted by the boards as evidence, and even less to limit such evidence to a declaration as set out in the Notice.

The board also failed to see any reason why evidence as to an appellant's status with respect to R. 7a(2)(a) to (c) EPC could not be filed after expiry of the time limit for filing the notice of appeal under Art. 108, first sentence, EPC. An appeal was only deemed to be filed if the fee for appeal had been paid within said time limit. The time limit for payment was, in turn, deemed to have been observed only if the (applicable) full amount of the fee had been paid in due time. Moreover, the difference in amount between the regular and the reduced fee for appeal was more than 30%, which could not reasonably be considered a minor underpayment that could be overlooked within the meaning of Art. 8, fourth sentence, RFees. However, this did not preclude an assessment of whether the time limit for payment of the appeal fee had been observed on the basis of evidence provided after its expiry. While it was true that it was the facts as they stood at the end of the period that were relevant, evidence for those facts may be submitted at a later stage, in particular in response to a communication by the competent board under R. 112(1) EPC, before a decision was taken on whether the appeal was deemed to have been filed. Indeed, this view was reflected in Art. 7(3) RFees.

In the present case, the application was filed by one of the inventors, who undoubtedly was a natural person within the meaning of R. 7a(2)(c) EPC. The fact that the applicant was a natural person was not questioned by the Examining Division during examination and there was no apparent reason to doubt this. The applicant was thus entitled to pay the reduced fee for appeal provided for in Art. 2(1), item 11 RFees. The applicable amount for the reduced fee for appeal was paid on 31 January 2025, i.e. within the time limit for filing the notice of appeal pursuant to Art. 108, first sentence, EPC.