J 0030/89 14-12-1989

1. The appeal is admissible.

2. The essential question in this appeal concerns the correct interpretation of Rule 85(1) EPC in the text ruling prior to 1 August 1987, which , so far as is material, stated that: "If a time limit expires on a day on which the European Patent Office is not open for receipt of documents ... the time limit shall extend until the first day thereafter on which the European Patent Office is open for receipt of documents ...".

3. In case J 01/81, "Public holiday/Losfeld", (OJ EPO 1983, 53), the Legal Board of Appeal held that if the time limit for payment of a fee expired on a day declared to be a public holiday in Munich, the time limit was extended under Rule 85(1) EPC (in the text ruling prior to 1 August 1987), irrespective of whether it would have been possible to effect payment in some way on that day, but the question whether that also applied to the branch at The Hague was expressly left open because it did not arise in that case (cf. Reasons, paragraph 7).

4. Although that question was expressly left open in Case J 01/81, the Legal Board of Appeal as at present constituted considers that it would not be correct to interpret Rule 85(1) EPC, in the text ruling prior to 1 August 1987, differently when the branch at The Hague is concerned. The European Patent Office is one organ of the European Patent Organisation (cf. Article 4 EPC) and the public has always had the right to pay fees directly to the Office either in Munich or in The Hague and no reason can be seen to disadvantage users of the Office according to the place in which they chose to make payment. On the reasoning adopted in the decision under appeal, it would seem that the Appellant could have avoided the alleged loss of the patent application in suit by making payment on 31 October 1986 to The Hague instead of to Munich, which would be absurd. It is, of course, a well established and generally recognised principle of interpretation of law that if two interpretations of a text are possible, the one which leads to a sensible result is to be preferred to that which leads to an absurd result. Indeed, there does not seem to be any reason why the expression "the European Patent Office" in Rule 85(1) EPC, in the text ruling prior to 1 August 1987, should not be interpreted as meaning the whole Office, which would be its normal interpretation in the absence of express or implied qualification.

5. Accordingly, the Board holds that the due date for payment of the renewal fee for the fourth year in respect of the patent application in suit was 2 May 1986, since the branch Office was officially closed on 30 April 1986 and both that Office and the Munich Office were officially closed on 1 May 1986 (OJ EPO 1986, 21-2). Since the renewal fee and the additional fee were paid within six months of that date, they were duly paid and the patent application in suit is not deemed to have been withdrawn as alleged.

6. It follows also that the application for re-establishment of rights under Article 122 EPC was made without cause and that, accordingly, the fee for re-establishment was not due and must be reimbursed (cf. Case T 243/86 -3.2.1, 9.12.1986).

7. In Case J 01/81, the Legal Board of Appeal thought it right to order reimbursement of the appeal fee on the ground that there was a failure to take account of Rule 85(1) EPC in the circumstances of that case. In the present case, it was taken into account but not correctly interpreted. In the established case law of the Boards of Appeal, it is not a ground for reimbursement that the decision under appeal was based on an incorrect interpretation of the EPC which was previously current in the practice of the Office or was a possible alternative interpretation: cf. J 8/83, OJ EPO 1985, 102; J 8/84, OJ EPO 1985, 261; J 20/84 and J 23/85, OJ EPO 1987, 95. Accordingly, although the Office should certainly have raised the question of the payment of the fourth renewal fee at a much earlier date than 9 March 1988, the Board does not consider that there is a substantial procedural violation within the meaning of Rule 67 EPC which would justify ordering reimbursement of the appeal fee in the present case.