11.3.1 Appeal deemed not to have been filed due to late filing of the notice of appeal and/or late payment of the appeal fee

For the issue of reimbursement of the appeal fee the distinction between an appeal not deemed to have been filed and an inadmissible appeal is relevant. When the appeal is deemed not to have been filed the appeal fee must be reimbursed since the purpose of this fee cannot be achieved. On the contrary, when an appeal is inadmissible it is in principle not possible to repay the appeal fee (T 445/98; see also T 372/99 and T 752/05).

As a result of diverging case law on this distinction, the President of the EPO referred a point of law to the Enlarged Board. The latter answered the referred question in Opinion G 1/18 (OJ 2020, A26) on whether an appeal is to be treated as not filed or as inadmissible in cases of a failure to observe the two-month time limit under Art. 108 EPC owing to belated payment of the appeal fee and/or belated filing of notice of appeal. This question had previously been submitted to the Enlarged Board in G 1/14 and G 2/14 – however the question had not been addressed because in G 1/14 the referral was found to be inadmissible and in G 2/14 the patent application was abandoned.

According to G 1/18, the different factual scenarios falling within the scope of the referred question and encountered in earlier case law should be treated as follows.

An appeal is deemed not to have been filed in the following cases: (a) where notice of appeal was filed within the two-month time limit prescribed in Art. 108, first sentence, EPC and the appeal fee was paid after expiry of that two-month time limit; (b) where notice of appeal was filed after expiry of the two-month time limit prescribed in Art. 108, first sentence, EPC and the appeal fee was paid after expiry of that two-month time limit; (c) where the appeal fee was paid within the two-month time limit prescribed in Art. 108, first sentence, EPC for filing notice of appeal and notice of appeal was filed after expiry of that two-month time limit.

In the cases referred to in (a), (b) and (c) in the preceding paragraph, reimbursement of the appeal fee is to be ordered ex officio.

In addition, where the appeal fee was paid within or after the two-month time limit prescribed in Art. 108, first sentence, EPC for filing notice of appeal and no notice of appeal was filed at all, the appeal fee is to be reimbursed.

With this ruling, the Enlarged Board effectively overruled earlier decisions in which, where facts were the same as envisaged in G 1/18, the appeal fee was not reimbursed because the board considered that the appeal was inadmissible. For an overview of relevant decisions predating G 1/18, see CLB, 9^th edn. 2019, V.A.9.3 "Appeal deemed not to have been filed or inadmissible appeal".