1.4.1 Additional period for payment of renewal fees under Rule 51(2) EPC

The substance of Art. 86(2) EPC 1973 (late payment of renewal fee and payment of additional fee) is now contained in R. 51(2) EPC.

In J 4/91 (OJ 1992, 402) the Legal Board held that when calculating the six-month period for the payment of a renewal fee with additional fee under Art. 86(2) EPC 1973, R. 83(4) EPC 1973 should be applied mutatis mutandis in the light of R. 37(1), first sentence, EPC 1973. This meant that the six-month period did not end on the day of the subsequent sixth month corresponding "in number" to the due date according to R. 37(1), first sentence, EPC 1973 but on the day which was equivalent to this due date by virtue of its being the "last day of the month". For the purposes of calculating the additional period under Art. 86(2) EPC 1973, therefore, R. 83(4) EPC 1973, in the context of R. 37(1), first sentence, EPC 1973, resulted in a period running "from the last day of the month to the last day of the month". The additional period started on the last day of the month specified in R. 37(1), first sentence, EPC 1973 even in the circumstances mentioned in R. 85(1), (2) and (4) EPC 1973. The occurrence of such circumstances at the beginning of the period did not result in the end of the period being postponed beyond the end of the sixth month and into the seventh month.

In J 14/12 the Legal Board explained that R. 51(3), first sentence, EPC provided that renewal fees already due in respect of an earlier application at the date on which a divisional application was filed also had to be paid for the divisional application and were due on its filing. In the case in hand, several renewal fees for the earlier application were due on the date of filing of the divisional application. The Legal Board noted that these fees and any renewal fees due within four months of filing the divisional application could be paid within that period without an additional fee (R. 51(3), second sentence, EPC). As R. 51(2) EPC also provided, in case a renewal fee was not paid in due time, the fee could still be paid within six months of the due date, provided that an additional fee was also paid within that period. Consequently, payment of the renewal fees that fell due for the present divisional application could be made until 1 February 2011 without an additional fee and until 1 April 2011 with an additional fee of 50% of the belated renewal fee.