J 0007/81 (Bank cash payment) 21-12-1982
I. Payment of a fee in cash at the counter of a bank is not a cash payment within the meaning of Article 5(1)(e) of the Rules relating to Fees, but a payment to be transferred to a bank account held by the Office as in Article 5(1)(a) of the said Rules. Consequently, in accordance with Article 8(1)(a), the date on which the payment is considered to have been made is the date on which the amount of the payment is entered in a bank account held by the Office.
II. A cash payment through a bank to a bank account held by the Office allows the payment to be considered to have been made within the period laid down, provided that it is made, in accordance with the provisions of Article 8(3), paragraph 1, of the Rules relating to Fees, "not later than 10 days before the expiry of such period".
III. An expired period cannot be extended following a request received by the EPO after the expiry of the period.
I. The European patent application concerned (not published) was filed on 28 November 1980. On 2 March 1981 the sum of FF 5 290, paid by the applicant and covering the amount of FF 4 500 for the filing and search fees, was entered in the EPO account. It has been established that this sum was paid in cash on 29 December 1980 by the applicant at the counter of the Auxerre (Yonne) branch of the Banque Nationale de Paris (BNP) marked "for the EPO account". This banking establishment's agency in Paris, "France étranger", claimed however not to have received the necessary instructions to credit the EPO until 2 March 1981. In the interval the applicant had been notified by the Office on 28 January 1981 that the fees had not been received within the period of one month provided for in Article 78(2) EPC, but that they could still be validly paid within a period of grace, subject to a surcharge being paid. There followed a correspondence with the Office in the course of which the applicant provided evidence of his payment to the B.N.P. and maintained that he was not liable to pay any surcharge. He was informed in reply that the only date of payment which could be taken into consideration was that of 2 March 1981 and that the payment was therefore made late. His reply of 3 April 1981 was considered as a request for a decision under the terms of Rule 69(2) EPC.
II. In a decision dated 13 April 1981, the Receiving Section held that, in accordance with the provisions of Article 78(2) EPC, the amount of the fees in suit should have been paid "within one month after the filing of the application", in this case on 29 December 1980, since 28 December 1980 was a Sunday and Rule 85(1) therefore applied. The decision found moreover that no surcharge had been paid within the period of grace of two months provided for in Rule 85a EPC and considered that, since the order of payment had been given on 29 December 1980, the expiry date of the period and not ten days before at the latest, the provisions of Article 8, paragraph 3 of the Rules relating to Fees could not be usefully invoked. It therefore found the application deemed to be withdrawn under the terms of Article 90(3) EPC.
III. The applicant lodged an appeal against this decision on 10 June 1981 and set out the grounds of appeal on 10 August 1981. On 11 June 1981 he furthermore paid into the B.N.P. in Auxerre the amount for the appeal fee which, as it turned out, was not transferred to an account held by the Office until 31 July 1981.
IV. In support of his appeal the applicant's main submission is that at the time of filing his patent he had only been informed very roughly of the system of fees and their amount and that he considered that the date on which he made the cash payment at the bank was the only date of payment to be taken into consideration. He has also contested the logic of Rule 8(3) which in his view would after all result in reducing by ten days the periods granted for payment of the fees.
V. In anticipation of a possible retroactive amendment to the Rules relating to Fees, particularly Article 8, a ruling on the present appeal was deferred. On 21 April 1982 the applicant was informed that this possibility appeared to be excluded and was invited to submit his observations within a period of three months. In a letter dated 23 July 1982 he stated that he adhered to his appeal and reiterated his earlier arguments, reserving the right to develop them further at a later date. A period in which to do so was granted to him up to 1 December 1982, by which date no new communication had been received by the Board. In a letter which arrived on 4 December 1982 he requested a further period in which to submit his arguments.
1 The decision of 13 April 1981 was communicated to the addressee by registered letter posted on the same day. Under the terms of Rule 78(3) EPC the letter is deemed to be delivered to the addressee ten days later, i.e. 23 April 1981, so that the time limit for lodging an appeal and paying the appropriate fee did not expire until 23 June 1981. Although the appeal fee was not received until 31 July 1981 and thus after expiry of the period, it must be considered as being paid in due time, the applicant having made the payment at a banking establishment on 11 June 1981, i.e. "not later than ten days before expiry of such period" as provided for in Article 8(3) (a) of the Rules relating to Fees. This provision aims at not exposing an interested party to a serious loss of rights if he has shown all the care which can reasonably be expected of him as regards payment of fees to the EPO. In these circumstances the appeal complies with Articles 106, 107 and 108 and Rule 64 EPC. It is therefore admissible.
2. The application for a second extension to the period granted for further grounds of appeal was received by the Board after expiry of the first period and was therefore invalid. Furthermore, the applicant had an opportunity to present his comments on all the arguments with which he was confronted, in accordance with the requirements of Article 113(1)EPC, and failed to bring forward any new evidence in his last request.
3. The Receiving Section found in its decision that the payment of fees had been made after expiry of the applicable time limits. Article 8(1) (a) of the Rules relating to Fees stipulates that in the case of a payment to a bank account held by the Office the payment is deemed to be made to the Office on the date on which the amount is entered in a bank account held by the Office. That date being 2 March 1981, it is clear that the payment was made after expiry of the governing time limit which, under the terms of Article 78(2) and Rule 85(1), ended on 29 December 1980.
4. The date of the payment in suit could not be that stated on the "cash receipt" given by the bank to the debtor: 29 December 1980, but the date on which the sum was credited to the EPO: 2 March 1981. This is clear from Article 8 of the Rules relating to Fees which leaves no room for uncertainty in interpretation. A cash payment as provided for by Article 5(1) (e) of the Rules relating to Fees must comply with Article 6(3) of the said Rules, i.e. must go directly to the EPO, either in DM to the Office in Munich, or in guilders to the branch at The Hague, the sub-offices referred to in that Article not having yet been set up. A cash payment to a bank in the national currency of the country in which the bank is located, however, constitutes a payment to a bank account held by the Office, which is therefore not deemed to be made until the date on which the sum is entered in that account.
5. Furthermore, the Receiving Section rightly refused in this case to apply the provisions of Article 8(3) (a) of the Rules relating to Fees to the benefit of the applicant, since the payment order, in this case a cash payment to the B.N.P. at Auxerre, had been given on 29 December 1980, i.e. on the date of expiry of the period at issue and not at the latest ten days before, as required under the said Article 8, paragraph 3. To maintain, as the applicant does, that this provision of Article 8 in effect leads to a reduction of ten days in the periods allowed for payment is without foundation. In fact, if the payment is made, i.e. entered in an EPO account, within the period, this provision does not apply. If on the other hand the payment is made, i.e. entered in an EPO account, late, this provision allows, exceptionally and to the advantage of the debtor, a payment order to be treated as a payment, provided only that it is given at the latest ten days before the expiry of the period.
6. In these circumstances the decision made by the Receiving Section was justified and must be upheld.
For these reasons, it is decided that:
The appeal against the decision of the Receiving Section dated 13 April 1981 is rejected.