T 0043/22 13-01-2023
Sumitomo Dainippon Pharma Oncology, Inc.
Sumitomo Pharma Co., Ltd.
I. The patent applicants lodged an appeal against the examining division's decision to refuse European patent application No. 16714015.1.
II. By letter dated 27 September 2022, the patent applicants withdrew their appeal. They also requested that the appeal fee be reimbursed at 75% in accordance with Rule 103 EPC.
III. On 4 October 2022, the board issued a communication stating that it saw only a legal basis for a reimbursement of the appeal fee at 50% but not 75%. The patent applicants were given a time limit of two months to file observations. No such observations were received within the prescribed time limit.
1. When withdrawing their appeal, the patent applicants requested that the appeal fee be reimbursed at 75% in accordance with Rule 103 EPC.
1.1 Rule 103(2) EPC stipulates that the appeal fee shall be reimbursed at 75% if, in response to a communication from the board indicating its intention to start substantive examination of the appeal, the appeal is withdrawn within two months of notification of that communication. It follows that a board's communication indicating its intention to start substantive examination of the appeal is a mandatory requirement for the 75% refund of the appeal fee under Rule 103(2) EPC (T 853/16, points 3 ff. of the Reasons, in particular points 5 and 7).
1.2 However, in the present case, the board had not issued such a communication. Consequently, the request for a reimbursement of the appeal fee at 75% is refused.
2. Because the appeal was withdrawn after the filing of the statement of grounds of appeal, the appeal fee shall nevertheless be reimbursed at 50% pursuant to Rule 103(3)(c) EPC.
For these reasons it is decided that:
The appeal fee is reimbursed at 50%.