Abstract on Article 108 EPC for the decision T0676/24 of 10.02.2026

In T 676/24 opponent 2 argued that the appeal had not been validly filed because the proprietor had paid the reduced appeal fee without being entitled to do so. The board recalled that, under Art. 108, first and second sentences, EPC, "[n]otice of appeal shall be filed... within two months of notification of the decision. Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid." Moreover, item 11 of Art. 2 RFees set out two different amounts of the fee for appeal: one for an appeal filed by any person referred to in R. 7a EPC and another for an appeal filed by any other person. The board also recalled that R. 7a(2)(a) to (d) EPC reads as follows: "(2) The reduction of fees referred to in paragraph 1 shall be available for: (a) microenterprises; (b) small and medium-sized enterprises; (c) natural persons; (d) non-profit organisations, universities or public research organisations."

The board explained that R. 7a EPC had been inserted by the "Decision of the Administrative Council of 14 December 2023 amending the Implementing Regulations to the European Patent Convention and the Rules relating to Fees, and adjusting the amount of the reduction in the fee for the supplementary European search where the international or supplementary international search report was drawn up by one of the European International Searching Authorities" (OJ 2024, A3, the "Decision"). As the Decision had entered into force on 1 April 2024, by the time the appeal was filed on 13 May 2024, the new R. 7a EPC was already in force.

The board pointed out that the Implementing Regulations, as amended by the Decision, contained no provision corresponding to former R. 6(5) EPC concerning the definition of micro, small and medium-sized enterprises. It noted, however, that section II.7 of the "Notice from the EPO dated 25 January 2024 concerning fee-related support measures for small entities" (OJ 2024, A8) corresponded to former R. 6(5) EPC. This section read: "For the language- and micro-entity-related fee reduction scheme (Rule 7a(2) and (3) EPC), the definitions of SMEs and microenterprises in Article 2 of Commission Recommendation 2003/361/EC of 6 May 2003 (L 124 of 20 May 2003, p. 36) in Annex 2 to this notice apply (the "Recommendation")." The board further noted that the conditions set out in the Recommendation defining the category of micro, small and medium-sized enterprises were correctly summarised in section 6 of the "Notice from the EPO dated 18 December 2017 concerning the reduced fee for appeal (Art. 108 EPC) for an appeal filed by a natural person or an entity referred to in R. 6(4) EPC" (OJ 2018, A5; the "Notice"). Having assessed the three conditions set out in the Notice, the board concluded that the patent proprietor had established that, when it filed the appeal on 13 May 2024, it was an SME within the meaning of the Recommendation.

On the declaration of eligibility for a reduction of the appeal fee, the board noted that R. 7b(1) EPC required a declaration, inter alia, to be an SME, from "[a]pplicants wishing to benefit from a reduction of fees under R. 7a, paragraph 1 or 3". Paragraph 1 referred to the filing or examination fee and paragraph 3 to five different fees, none of them being the appeal fee. The board concluded that R. 7b(1) EPC did not require a declaration of eligibility for a reduction of the appeal fee. Nor did item 11 of Art. 2 RFees, which specifies the reduced fee, and the board found no other legal basis for it (see the analogous conclusion for former R. 6(6) EPC in T 1678/21 and, for R. 7a and 7b EPC, in T 553/25). The board held that evidence of eligibility for a reduction of the appeal fee need not be produced within the appeal period or on the date of payment of the appeal fee, but could instead be produced upon request by the board (see Art. 7(3) RFees), as occurred in the present case.

According to the board, the declaration requirement set out in points 3 to 5 of the section entitled "Declaration of entitlement" of the Notice had no legal basis, nor did the requirement at the bottom of EPO Forms 1038 and 1038bis to print the name and mention the function in a company. Applying the declaration requirement of the Notice arguendo, the board found that the patent proprietor had complied with it, since the EPO had never contested the validity of the declaration filed on 13 May 2016. The patent proprietor was therefore entitled to rely on the EPO's tacit acceptance of that declaration and was consequently not required to file a new declaration within the time limit for filing the appeal and at the latest when paying the reduced appeal fee. The patent proprietor had in any event filed a new Declaration for SMEs on EPO Form 1038bis, together with its letter dated 9 January 2026.

The board concluded that the patent proprietor's appeal was deemed to have been filed on 13 May 2024, when the reduced fee for an appeal was received. The proprietor was entitled to pay this reduced fee pursuant to R. 7a(2)(b) EPC.