J 0004/81 (Calculation of the fee for printing) 09-09-1981
Calculation of printing fee
Printing fee/calculation of
I. On 19 February 1980, before grant of European patent No. 78 100 157.3 (application published under No. 0 000 145), the Formalities Officer of the Examining Division of the EPO, acting pursuant to Rule 51(4) EPC, requested the appellant inter alia to pay the fee for printing which in accordance with Article 2, item 8 of the Rules relating to Fees was calculated on the basis of the number of pages of the application in the form in which the Examining Division proposed to grant the European patent and amounted to DM 230 for 23 pages at DM 10 per page. The appellant thereafter paid this sum at the same time as the fee for grant.
II. However, by letter dated 21 October 1980 the appellant applied for repayment of DM 80 of the amount paid in respect of the printing fee on the ground that the specification as printed consisted of 15 pages, not 23. By a decision dated 13 February 1981, the Head of the Formalities Section rejected this application on the grounds that: (a) in accordance with the terms of Article 2, item 8 of the Rules relating to Fees, the fee for printing was calculated on the basis of the number of pages of the application, without reference to the number of pages of the printed specification; (b) the fee was payable prior to printing, i.e. at a time when the actual number of pages of the printed European patent specification was still unknown. He added that the printing fee was the result of a flat-rate calculation, not a payment of the actual printing costs, and that there was an obvious relationship between the length of the application and the length of the printed specification.
III. By letter dated 1 April 1981, the appellant appealed against this decision. The appeal fee was paid and the grounds of the appeal were stated. The appellant sought repayment of part of the fee for printing corresponding to 8 pages and also reimbursement of the appeal fee. In a written submission dated 1 June 1981, the appellant contended that the text of Article 2, item 8 of the Rules relating to Fees clearly refers to each page of the printed specification as granted. The appellant contended further that any contrary interpretation would unjustly penalize an applicant who set out the text in a readable structured fashion with numerous paragraphs and spaces, and that in practice the Examining Division could readily estimate, prior to printing, the number of pages that the specification would have.
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC, and is, therefore, admissible. The decision under appeal emanates from a department that was competent to make it through the authority delegated to the Head of the Formalities Section (cf. "Communication dated 10 August 1979 of the Vice-President of Directorate-General 2 EPO concerning the entrustment to Formalities Officers of the execution of individual duties falling to the Examining Divisions of the EPO" - OJ/EPO 1979, 379, item 9).
2. The combined effect of Rule 51(4) EPC and Article 2, item 8 of the Rules relating to Fees is that the Examining Division notifies the applicant of the text in which it proposes to grant the European patent before deciding to grant it and invites the applicant inter alia to pay the fee for printing calculated by reference to the number of pages "of the application in the form in which it is to be printed".
3. The last phrase indicates clearly that it is proper to refer, for the purpose of calculating the fee for printing, not to the as yet unprinted specification, the number of pages of which is still unknown at the date of notification, but, as the text prescribes, to the application, and moreover not to the application as originally filed but in the form in which it will be after any proposed amendments have been made.
4. The fact that it is the application in its possibly amended form which is being referred to is indicated by the employment of the future tense in the French text of Article 2, item 8 of the Rules relating to Fees; "la demande dans la forme dans laquelle elle sera imprimée". The German and English texts are just as clear: "die Anmeldung in der für die Veröffentlichung bestimmten Form" and "the application in the form in which it is to be printed", i.e. literally, in the form destined for publication (German) or printing (English).
5. Faced with an unambiguous provision which is not inconsistent with any other provision, there is no scope for looking to see whether some other solution would have been preferable, such as calculation of the fee for printing by reference to the estimated number of printed pages of the specification, as suggested by the appellant.
6. Further, it is evident that the wording of Article 2, item 8 of the Rules relating to Fees expresses the intention of the Administative Council at the time of fixing the amount of the printing fee on 14 September 1979. This is in fact confirmed by a note by the President of the EPO dated 20 July 1979 (Reference No. CA 42/79) which pointed out that the cost of setting one printed page was approximately DM 60 and that one printed page was the equivalent of about three typed pages, so that each typed page cost about DM 20 to set. Since about 50% of the printing costs would be covered by the selling price of specifications, it seemed reasonable to fix the fee for printing "at DM 10 per page of manuscript".
7. Finally, the system of flat-rate fee calculation provided for in the Rules has not in practice proved difficult to apply. It is certainly preferable to the system suggested by the appellant under which when notification was given of the text intended for publication an approximate number of printed pages would be indicated, followed, after printing, by a partial refund or a surcharge.
8. As the appeal does not succeed, the appellant's application for reimbursement of the appeal fee in accordance with Rule 67 EPC must fail.
For these reasons, it is decided that:
The appeal against the decision dated 13 February 1981 of the Head of the Formalities Section of Directorate-General 2 of the European Patent Office acting for the Examining Division and the application for reimbursement of the appeal fee are dismissed.