2.5.5 Appeal deemed not to have been filed

In G 1/18 (OJ 2020, A26), the point of law referred by the President of the EPO was 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.

The Enlarged Board answered the referred point of law as follows:

1. 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.

2. In the cases referred to in answers 1(a) to (c), reimbursement of the appeal fee is to be ordered ex officio.

3. 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.

On this in connection with reimbursement of appeal fees, see also chapter V.A.11.3. "Appeal deemed not to have been filed".