T 0251/15 28-01-2016

1. According to Article 108, first sentence, EPC the notice of appeal has to be filed within two months of notification of the decision. The second sentence of this provision stipulates that the notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid.

2. In the present case, the decision under appeal was issued on 22 December 2014 and the time limit specified in Article 108, first sentence, EPC expired on 2 March 2015. Since the appeal fee had not been paid within that time limit (it was paid on 11 March 2015) the appellant was informed - according to Rule 112(1) EPC - by communication from the registrar of the Board of Appeal dated 21 April 2015, that the appeal was deemed not to have been filed pursuant to Article 108, second sentence, EPC. The appellant did not question this finding by applying for a decision on that matter pursuant to Rule 112(2) EPC. Thus, since the above finding became final the appeal is deemed not to have been filed, unless the appellant's request for re-establishment is allowed.

3. Admissibility of the request for re-establishment

Article 122(1) EPC stipulates that the right to re-establishment of rights is available for an applicant for or proprietor of a European patent. However, according to decision G 1/86 (OJ EPO 1987, 447) an appellant as opponent may have its rights re-established under Article 122 EPC if it has failed to observe the time limit for filing the statement of grounds of appeal. It follows from the reasons of the decision that the applicability of Article 122(1) EPC is limited to cases where an appellant-opponent missed the time limit for filing the grounds of appeal (see in particular points 7 to 11 of the Reasons). Thus, an appellant-opponent who misses, as in the present case, the time limit for filing the notice of appeal and/or for paying the appeal fee, is not entitled to have his rights re-established (cf. T 210/89, OJ EPO 1991, 433; cf. T 323/87, OJ EPO 1989, 343, T 128/87, OJ EPO 1989, 406). In such a case, an appellant-opponent cannot rely on the principle of "equality before the law". His legal position differs from the position of an applicant (or patentee)-appellant (cf. G 1/86, point 5 of the Reasons.)

Having taken into account the arguments presented by the appellant, the Board sees no reason to deviate from the established case law. According to G 1/86, points 8 and 9 of the Reasons, the patent proprietor has a legitimate interest in not being left uncertain as to whether a legally effective appeal has been filed within the two-month time limit under Article 108 EPC. By filing the notice of appeal and by paying the appeal fee within the two-month time limit of Article 108 EPC the opponent has validly made known his intention of having the Opposition Division's decision set aside. According to Article 108, second sentence, EPC the notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid. Thus, if the appeal fee has not been paid within the two-month time limit of Article 108 EPC, the patent proprietor's uncertainty no longer exists, since no appeal is considered to be in existence and the appeal procedure has not been validly set in motion. Thus, the Board does not accept the appellant's argument that the patent proprietor's uncertainty no longer existed in the present case merely due to the fact that the notice of appeal had been filed in time irrespective of the belated payment of the appeal fee. Thus, contrary to the appellant's argument, there is a sound reason that the late payment of the appeal fee and the failure to file the statement of grounds within the four-month time limit of Article 108, third sentence, EPC are treated differently as far as the issue of re-establishment of rights is concerned. The possibility for opponents to have their rights re-established in cases where the time limit for filing the statement of grounds is missed is based on the existence of a legally effective appeal, i.e. on the fact that the appeal procedure has validly been set in motion. However, when the appeal fee has not been paid in time, there is no appeal in existence and the patent proprietor has a legitimate interest in being able to rely on the fact that the Opposition Division's decision has become final.

4. Referral of a question to the Enlarged Board of Appeal

4.1 Under Article 112(1) EPC, the Board of Appeal, in order to ensure uniform application of the law or if a point of law of fundamental importance arises, and possibly of its own motion, shall refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes.

4.2 As shown under point 3.1 above there is established case law on the question at hand which is based on decision G 1/86 of the Enlarged Board of Appeal. Moreover, the appellant admitted during the oral proceedings before the Board that deviating case law had not been found. In addition, the Board finds, as shown under point 3.2 above, that there is no lacuna in the reasoning of the decision G 1/86 which could be filled by answering the question which the appellant requested to have referred to the Enlarged Board of Appeal.

4.3 In that context the appellant noted that the question raised in the interlocutory decision of 24 February 2014 in T 2017/12 (G 2/14, cf. also the interlocutory decision of 20 February 2014 in T 1553/13 and G 1/14) should be taken into account. The question whether an appeal is inadmissible or deemed not to have been filed, where a notice of appeal is filed but the appeal fee is paid after expiry of the time limit of Article 108 EPC, first sentence, EPC could be of relevance for the present case (cf. Facts point VIII.).

4.4 The Board does not share that view for various reasons. First, the question raised in the aforementioned proceedings does not deal at all with the issue of re-establishment of rights requested by an appellant-opponent. Second, the facts underlying the interlocutory decisions in the above cases are different from the situation in the case at hand. In the present case, there is no pending question whether the appeal is inadmissible or deemed not to have been filed, since the appellant was informed - according to Rule 112(1) EPC - by communication from the registrar of the Board of Appeal dated 21 April 2015, that the appeal was deemed not to have been filed pursuant to Article 108, second sentence, EPC. This finding had become final since the appellant did not apply for a decision on that matter pursuant to Rule 112(2) EPC. Consequently, no appeal is considered to be in existence when the appeal procedure has not been validly set in motion, which was the decisive reason in G 1/86 allowing re-establishment of rights into the four-month period (cf. point 3.2).

4.5 Thus, the Board came to the conclusion that a referral to the Enlarged Board of Appeal was not justified.

5. Consequently, in view of the above, the Board comes to the conclusion that the request for re-establishment of rights is inadmissible. Thus, the appeal is deemed not to have been filed as noted by communication pursuant to Rule 112(1) EPC dated 21 April 2015.