T 0058/07 20-03-2007
A mutated subtilisin protease
Wish not to pursue the appeal expressed before expiry of the two month period for filing a notice of appeal
Refund of the appeal fee (no)
I. With a notice of appeal dated 5 January 2007 the patent proprietor (appellant) lodged an appeal against the decision of the opposition division dated 29 November 2006, whereby the European patent No. 90 910 604.9 with publication number 0 479 870 was revoked.
II. The appeal fee was paid on 8 January 2007.
III. With a letter dated 26 January 2007 the appellant announced that it did not wish to pursue the appeal and requested that the appeal fee be refunded. It submitted that since the two month period as prescribed in Article 108 EPC had not yet expired the appeal fee could be refunded. This is interpreted as a formal request for refund of the appeal fee.
IV. No statement setting out the grounds of appeal was filed.
1. The Board considers that the wish not to pursue the appeal as expressed in its letter of 26 January 2007 amounts to a withdrawal of the appeal.
2. As the notice of appeal was filed in due time, i.e. within two months after the date of notification of the decision appealed from, and the appeal fee was paid, an appeal is deemed to have been filed (Article 108 EPC).
3. As ruled in decision J 12/86 (OJ EPO 1988, 83), once an appeal has been filed in accordance with Article 108 EPC and has therefore come into existence, the only power to order reimbursement of the appeal fee is that provided by Rule 67 EPC. Thus in the present case, the fact that the appeal has been withdrawn during the two month period as prescribed in Article 108 EPC does not create per se a right for a refund of the appeal fee.
4. According to Rule 67 EPC, as applicable to inter partes proceedings, an appeal fee shall be reimbursed when the Board of appeal deems an appeal to be allowable, if such reimbursement is equitable by reason of a substantial procedural violation. This is not applicable here as, in view of the wish not to pursue the appeal expressed already before filing a statement setting out the grounds of appeal, admissibility of the appeal is not even an issue. However, the appeal is in existence.
5. There is therefore no basis for ordering refund of the appeal fee in the present case.
For these reasons it is decided that:
The request for refund of the appeal fee is rejected.