T 0595/11 (Underpayment of appeal fee/Lely Enterprises AG) of 27.05.2015
- European Case Law Identifier
- ECLI:EP:BA:2015:T059511.20150527
- Date of decision
- 27 May 2015
- Case number
- T 0595/11
- Petition for review of
- -
- Application number
- 05075618.8
- Language of proceedings
- English
- Distribution
- Distributed to board chairmen (C)
- Download
- Decision in English
- OJ versions
- No OJ links found
- Other decisions for this case
- -
- Abstracts for this decision
- -
- Application title
- A method of milking a dairy animal
- Applicant name
- Lely Enterprises AG
- Opponent name
- DeLaval International AB
- Board
- 3.2.04
- Headnote
- -
- Relevant legal provisions
- European Patent Convention Art 100(a)European Patent Convention Art 100(b)European Patent Convention Art 111(1)European Patent Convention Art 122European Patent Convention Art 14(4)European Patent Convention Art 54European Patent Convention R 103European Patent Convention R 6(3)
- Keywords
- Recognition of legitimate expectations (yes)
Appeal deemed to have been filed and admissible (yes)
Sufficiency of disclosure - claim 1 of the main request (yes)
Novelty - claim 1 of the main request (yes)
Remittal to the first instance for further prosecution - Catchword
- 1. When deciding on the possible consequences of the Office's failure to meet its obligation to check a fee payment, the merely conjectural possibility of a real, but otherwise in itself not necessarily decisive setback (here the non-occurrence of an immediate success) for a party is more preferable than a certain decisive loss of all rights for another party, in particular when for a long time none of the parties expected the latter, see Reasons 1.13
2. Fee payment is not an issue of admissibility of the appeal, but rather a precondition for the very existence of the appeal, i.e. its deemed filing, see Reasons 1.15
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the department of the first instance for further prosecution.