9.1. Legal reason for payment of fee

In T 46/07, the board found that, if the fee for re-establishment of rights is paid after expiry of the two-month period laid down in Art. 122(2) EPC 1973, the application for re-establishment of rights does not come into existence and therefore the fee must be refunded even without a respective request.

In T 2454/11, the board observed that, in earlier board decisions taken in the light of G 1/86, requests from an appealing opponent for re-establishment of rights had been regarded as "devoid of purpose" or "not validly filed" and the fee refunded (see e.g. T 520/89, T 266/97). In the case in hand the board endorsed the view taken more recently in T 1026/06 that the fee was not refundable. It could only be reimbursed if it had been paid for no legal reason or if a refund was required by a legislative provision. Under Art. 122(3) EPC, a request for re-establishment of rights was not deemed to be filed until the fee had been paid, so payment was required for the request to have effect. There had therefore been a legal reason for its payment and there was no provision requiring a refund.