T 0161/96 (Underpayment of opposition fee/NOVO NORDISK) of 03.11.1997
- European Case Law Identifier
- ECLI:EP:BA:1997:T016196.19971103
- Date of decision
- 3 November 1997
- Case number
- T 0161/96
- Petition for review of
- -
- Application number
- 87307406.6
- IPC class
- A61K 37/36
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- Other decisions for this case
- -
- Abstracts for this decision
- -
- Application title
- Stabilisation des hormones de croissance
- Applicant name
- Mallinckrodt Group Inc.
- Opponent name
- (01) Novo Nordisk
(02) Pharmacia & Upjohn
(03) Genentech - Board
- 3.3.04
- Headnote
I. The requirements in connection with the principle of good faith to be observed by the EPO are the same vis-à-vis all parties involved in proceedings before the EPO, be they applicants, patent proprietors or opponents.
II. In case it is assumed that even an underpayment of the opposition fee, which is solely due to a deficiency within the area of responsibility of the opponent concerned, may give rise to an obligation by the EPO to warn the opponent of the impending loss of rights, the requirements for the very existence of such an obligation imply that (i) the formalities officer of the opposition division receives a payment sheet, indicating said underpayment, from the cash and accounts department within the opposition period, that (ii) the payment of the lacking amount by the opponent on his own initiative before the end of the opposition period must objectively be excluded, and that (iii) the opponent can still pay the lacking amount within the opposition period.
- Relevant legal provisions
- European Patent Convention Art 112(1) 1973European Patent Convention Art 114 1973European Patent Convention Art 125 1973European Patent Convention Art 14(2) 1973European Patent Convention Art 14(4) 1973European Patent Convention Art 99(1) 1973European Patent Convention R 56(1) 1973European Patent Convention R 6(3) 1973European Patent Convention R 69 1973European Patent Convention R 9(3) 1973Rules relating to fees Art 12(1)Rules relating to fees Art 9(1)
- Keywords
- Underpayment of more than 40% of the opposition fee - amount not small
Act of informing an opponent within the meaning of Rule 69(2), second sentence EPC - not belonging to the duties entrusted to formalities officers of the opposition division
Payment of the lacking amount not to be considered to have been made in time by virtue of the principle of good faith - no obligation placed on the opposition division to warn the appellant of the underpayment of the opposition fee
Referral of a question to the Enlarged Board of Appeal (no) - only questions on a specific point of law, and not questions to individual cases which cannot be examined isolated from the respective facts, may be be referred to the Enlarged Board of Appeal
Reimbursement of the opposition fee (yes)
Opposition I deemed not to have been filed - Catchword
- -
ORDER
For these reasons it is decided that:
1. The decision under appeal to reject opposition I as inadmissible is set aside.
2. The opposition I is deemed not to have been filed.
3. The reimbursement of the fee paid (i.e. DEM 1200) for opposition I is ordered.
4. The request to refer a question to the Enlarged Board of Appeal is rejected.