T 0323/87 (Official language) 24-03-1988
Reimbursement of the appeal fee (yes)
Translation of the notice of appeal not filed in due time/no appeal
Restitutio/opponent - only possible in time limit for filing statement of grounds for appeal
By decision of the Opposition Division dated 25 June 1987 the oppositions filed against European patent No. 69 642 were rejected pursuant to Article 102(2) EPC. Opponent II, a company whose head office is in the Netherlands, filed a notice of appeal against this decision on 30 July 1987, which was received by the European Patent Office on 4 August 1987. The notice was drafted in Dutch. By letter dated 22 October 1987 and received on 23 October 1987 the appellants filed a statement setting out in German the grounds of their appeal. In a communication dated 29 September 1987 the appellants were informed that their appeal was deemed not to have been filed because they had not supplied a translation of the notice of appeal of 30 July 1987 in one of the official languages of the European Patent Office. The respondents, who are the patentees, pointed out that, in their view, the appeal was not admissible as the notice of appeal had been filed in Dutch only in the time allowed for appeal. In a letter dated 13 January 1988 and received on 16 January 1988 the appellants filed a translation in German of their notice of appeal, explaining that it had previously been filed only in Dutch due to an oversight.
VI. The registrar of the Board of Appeal notified the appellants' representative that the translation of the notice of appeal had not been filed in due time. The representative has asked the Board for a decision.
1. There is no appeal for the Board to decide.
2. The appellants despatched their letter of 30 July 1987 within the time allowed for appeal. The document was drafted in Dutch and contained a notice of appeal against the decision taken on 25 June 1987 by the Opposition Division. Being a company whose head office is in the Netherlands, the appellants were entitled to file an appeal in Dutch, since under Article 14(4) EPC persons having their principal place of business within the territory of a Contracting State having a language other than English, French or German as an official language may also file documents which have to be filed within a time limit in an official language of the Contracting State concerned.
3. If an appellant makes use of this possibility mentioned in the first sentence of Article 14(4) EPC he must, under Article 14(4) EPC, second sentence, furnish a translation in the language of the proceedings or in a different official language of the European Patent Office within the time limit prescribed in the Implementing Regulations. Rule 6(2) EPC stipulates that the translation referred to in Article 14(4) EPC must be filed within one month of the filing of the document or by the end of the appeal period if this expires later. That requirement has not been observed since the translation of the notice of appeal into German was filed only with the letter of 13 January 1988.
4. Under Article 14(5) EPC, unless an opponent files the translation of the notice of appeal in the language of the proceedings or in a different official language of the European Patent Office in due time, the notice will be deemed not to have been received. Since the notice of appeal of 30 July 1987 is deemed not to have been received and the appeal has not therefore been filed, it follows that the appeal fee has been paid without reason and must in consequence be reimbursed.
5. The appellants have not applied for restitutio in integrum in respect of the time limit for filing the translation, nor could they do so since, under Article 122 EPC, that remedy is normally available only to patent proprietors and applicants, and not to opponents except in respect of the time limit for filing the statement of grounds for appeal where an admissible appeal has been filed (see decision of the Enlarged Board of Appeal of the European Patent Office,G 01/86, OJ EPO 1987, 447).
For these reasons, it is decided that:
1. The appeal of 30 July 1987 is deemed not to have been filed.
2. Reimbursement of the appeal fee is ordered.