2.2.5 Interpretation and correction of debit orders
In early decision T 170/83 (OJ 1984, 605 – see above), the board observed that, because the running of deposit accounts fell outside the grant or opposition procedures, it was not governed by the correction provisions of R. 88, first sentence, EPC 1973 (cf. R. 139, first sentence, EPC). To make a payment was to perform an act, namely to make a given amount available to the EPO at a particular time (Art. 9(1), first sentence, RFees; see now Art. 8, first sentence, RFees). A similar conclusion was reached in T 152/85 (OJ 1987, 191). However, R. 139, first sentence, EPC has been applied to correct an error in debit orders in subsequent board of appeal decisions since the introduction in point 5 (now point 7) ADA of stricter conditions for filing debit orders (see e.g. T 130/19, T 317/19, T 1000/19 and T 1146/20). Rule 139, first sentence, EPC has also been applied in the context of debit orders which had mistakenly indicated the reduced rather than the full appeal fee (see e.g. J 8/19, T 2620/18, T 3098/19, T 444/20, T 1678/21, T 1538/19 and chapter V.A.2.5.4). See also T 186/22 concerning correction of a debit order specifying an incorrect deposit account number.
In T 71/21 the appellant (opponent) had attempted to pay the appeal fee within the appeal period by setting up an automatic debiting procedure. This could not succeed because this online payment method is inadmissible for opponents (see also in this chapter III.U.2.2.4). Applying R. 139 EPC and taking into account the principles set out in G 1/12, the board concluded that it was not possible to retroactively correct the payment method and deem the deadline for payment met. According to the board, both the notice of appeal and Form 1038 objectively showed, in view of the wording chosen, the appellant's clear and unambiguous intention to pay the appeal fee by means of the automatic debiting procedure. The fact that the appellant was not entitled to use this debiting procedure and had therefore chosen an inadmissible payment method had no bearing on the objectively recognisable unambiguity of this intention (see also in chapter III.A.4.2.2).
In T 2170/21 the appeal fee had not been paid within the appeal period in the prescribed amount because the appellant (patent proprietor) had issued the debit order on the wrong electronic form for an opposition fee. The board saw no reason to question the possibility in principle of correcting an erroneous fee payment under R. 139 EPC, in line with T 71/21 and the further decisions cited therein. In the board's view, a correction was possible without replacing the entire form. Contrary to the respondent's view, the conditions for allowing a correction as established by the Enlarged Board and developed in the case law of the boards of appeal (G 1/12, point 37 of the Reasons, conditions (a) to (d)) were also met.
The board in T 1678/21 held that the four criteria for assessing whether a request for correction of a document filed with the EPO pursuant to R. 139 EPC could be granted were principles (a) to (c) of G 1/12 (see point 37 of the Reasons), complemented by a further criterion (d), namely, balancing of the public interest in legal certainty with the interest of the party requesting correction, with factors relevant to the specific case. As a rule, criteria (a) to (d) were to be assessed in the order (c), (a), if applicable, together with (b), and (d). In the case in hand, the board concluded that the criteria for correction applicable in this case had been met (see also T 1678/21 in this chapter III.U.2.2.5a)(i) above).
According to the board in T 3098/19, the relevant point in time for the question as to whether a request for correction had been filed without delay could only be the date on which the mistake had been discovered by the relevant person (see also J 1/20 and T 1678/21). Since the appellant filed the request immediately after having been informed by the EPO about the payment of the reduced appeal fee, the board considered that the criterion of G 1/12 had been met.
See also T 1474/19 in this chapter III.U.2.2.5a)(i).