5. Fee reductions

In T 676/24 opponent 2 argued that the appeal had not been validly filed because the proprietor had paid the reduced appeal fee without being entitled to do so. The board recalled that, under Art. 108, first and second sentences, EPC, "[n]otice of appeal shall be filed... within two months of notification of the decision. Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid." Moreover, item 11 of Art. 2 RFees set out two different amounts of the fee for appeal: one for an appeal filed by any person referred to in R. 7a EPC and another for an appeal filed by any other person. The board also recalled that R. 7a(2)(a) to (d) EPC reads as follows: "(2) The reduction of fees referred to in paragraph 1 shall be available for: (a) microenterprises; (b) small and medium-sized enterprises; (c) natural persons; (d) non-profit organisations, universities or public research organisations..

The board explained that R. 7a EPC had been inserted by the "Decision of the Administrative Council of 14 December 2023 amending the Implementing Regulations to the European Patent Convention and the Rules relating to Fees, and adjusting the amount of the reduction in the fee for the supplementary European search where the international or supplementary international search report was drawn up by one of the European International Searching Authorities" (OJ 2024, A3, the "Decision"). As the Decision had entered into force on 1 April 2024, by the time the appeal was filed on 13 May 2024, the new R. 7a EPC was already in force..

The board pointed out that the Implementing Regulations, as amended by the Decision, contained no provision corresponding to former R. 6(5) EPC concerning the definition of micro, small and medium-sized enterprises. It noted, however, that section II.7 of the "Notice from the EPO dated 25 January 2024 concerning fee-related support measures for small entities" (OJ 2024, A8) corresponded to former R. 6(5) EPC. This section read: "For the language- and micro-entity-related fee reduction scheme (Rule 7a(2) and (3) EPC), the definitions of SMEs and microenterprises in Article 2 of Commission Recommendation 2003/361/EC of 6 May 2003 (L 124 of 20 May 2003, p. 36) in Annex 2 to this notice apply (the "Recommendation")." The board further noted that the conditions set out in the Recommendation defining the category of micro, small and medium-sized enterprises were correctly summarised in section 6 of the "Notice from the EPO dated 18 December 2017 concerning the reduced fee for appeal (Art. 108 EPC) for an appeal filed by a natural person or an entity referred to in R. 6(4) EPC" (OJ 2018, A5; the "Notice"). Having assessed the three conditions set out in the Notice, the board concluded that the patent proprietor had established that, when it filed the appeal on 13 May 2024, it was an SME within the meaning of the Recommendation.

On the declaration of eligibility for a reduction of the appeal fee, the board noted that R. 7b(1) EPC required a declaration, inter alia, to be an SME, from "[a]pplicants wishing to benefit from a reduction of fees under R. 7a, paragraph 1 or 3". Paragraph 1 referred to the filing or examination fee and paragraph 3 to five different fees, none of them being the appeal fee. The board concluded that R. 7b(1) EPC did not require a declaration of eligibility for a reduction of the appeal fee. Nor did item 11 of Art. 2 RFees, which specifies the reduced fee, and the board found no other legal basis for it (see the analogous conclusion for former R. 6(6) EPC in T 1678/21 and, for R. 7a and 7b EPC, in T 553/25). The board held that evidence of eligibility for a reduction of the appeal fee need not be produced within the appeal period or on the date of payment of the appeal fee, but could instead be produced upon request by the board (see Art. 7(3) RFees), as occurred in the present case.

According to the board, the declaration requirement set out in points 3 to 5 of the section entitled "Declaration of entitlement" of the Notice had no legal basis, nor did the requirement at the bottom of EPO Forms 1038 and 1038bis to print the name and mention the function in a company. Applying the declaration requirement of the Notice arguendo, the board found that the patent proprietor had complied with it, since the EPO had never contested the validity of the declaration filed on 13 May 2016. The patent proprietor was therefore entitled to rely on the EPO's tacit acceptance of that declaration and was consequently not required to file a new declaration within the time limit for filing the appeal and at the latest when paying the reduced appeal fee. The patent proprietor had in any event filed a new Declaration for SMEs on EPO Form 1038bis, together with its letter dated 9 January 2026.

The board concluded that the patent proprietor's appeal was deemed to have been filed on 13 May 2024, when the reduced fee for an appeal was received. The proprietor was entitled to pay this reduced fee pursuant to R. 7a(2)(b) EPC.

In T 553/25 the applicant had, on 31 January 2025, filed a notice of appeal and paid the appeal fee for persons referred to in R. 7a(2)(a) to (d) EPC as provided for in Art. 2(1), item 11 RFees. By communication of the Examining Division dated 6 February 2025 (the "Communication"), the applicant was informed that the initial formal check of the appeal revealed that the reduced fee had been paid but a declaration that the appellant was a natural person or an entity according to R. 7b EPC had not been filed. Failure to file such declaration within the time limit under Art. 108 EPC would result in the appellant not being eligible for the reduced fee.

The board noted that the Communication relied, inter alia, on the notice from the EPO dated 18 December 2017 (the "Notice") concerning the reduced fee for appeal for an appeal filed by a natural person or an entity referred to in R. 6(4) EPC, now R. 7a and 7b EPC. The Notice introduced a formal requirement for the valid payment of the fee for appeal and thereby also an additional requirement for lodging an appeal. However, there was no legal basis in the EPC for such a requirement, nor was the board aware of any provision empowering the EPO to adopt such regulations, even less so at the level of a notice. Art. 2(1), item 11 RFees referred to R. 7a(2)(a) to (d) EPC, to define the persons and entities eligible to pay the reduced fee for appeal. This had no legal implications beyond giving a definition of who is eligible for the reduced fee for appeal.

There was no reference in Art. 2(1), item 11 RFees to R. 7b(1) EPC, which establishes a requirement to declare eligibility to a reduction in fees, in a different context. According to R. 7b(1) EPC, such a declaration is required if persons or entities according to R. 7a(2)(a) to (d) EPC wish to avail themselves of a reduced fee according to R. 7a(1) or (3) EPC. These provisions concern fees to be paid for patent applications up to the grant of a patent. R. 7b EPC does not apply to the payment of the reduced fee for appeal, be it directly or by way of reference. Even less can R. 7b EPC apply to the fee for appeal by way of a mere analogy.

According to the board, it followed that there was no legal basis for a prior declaration of eligibility as a prerequisite for a valid payment of the reduced fee. A declaration of eligibility might be seen as a form of evidence supporting a payment of the reduced fee for appeal. Indeed, when examining the admissibility of an appeal, a board may require appellants who pay a reduced fee to provide evidence that they fall into one of the categories of persons and entities listed in R. 7a(2)(a) to (d) EPC. However, the EPO has no power to define what is to be accepted by the boards as evidence, and even less to limit such evidence to a declaration as set out in the Notice.

The board also failed to see any reason why evidence as to an appellant's status with respect to R. 7a(2)(a) to (c) EPC could not be filed after expiry of the time limit for filing the notice of appeal under Art. 108, first sentence, EPC. An appeal was only deemed to be filed if the fee for appeal had been paid within said time limit. The time limit for payment was, in turn, deemed to have been observed only if the (applicable) full amount of the fee had been paid in due time. Moreover, the difference in amount between the regular and the reduced fee for appeal was more than 30%, which could not reasonably be considered a minor underpayment that could be overlooked within the meaning of Art. 8, fourth sentence, RFees. However, this did not preclude an assessment of whether the time limit for payment of the appeal fee had been observed on the basis of evidence provided after its expiry. While it was true that it was the facts as they stood at the end of the period that were relevant, evidence for those facts may be submitted at a later stage, in particular in response to a communication by the competent board under R. 112(1) EPC, before a decision was taken on whether the appeal was deemed to have been filed. Indeed, this view was reflected in Art. 7(3) RFees.

In the present case, the application was filed by one of the inventors, who undoubtedly was a natural person within the meaning of R. 7a(2)(c) EPC. The fact that the applicant was a natural person was not questioned by the Examining Division during examination and there was no apparent reason to doubt this. The applicant was thus entitled to pay the reduced fee for appeal provided for in Art. 2(1), item 11 RFees. The applicable amount for the reduced fee for appeal was paid on 31 January 2025, i.e. within the time limit for filing the notice of appeal pursuant to Art. 108, first sentence, EPC.