T 1678/21 du 14.02.2023

Correction under Rule 139 EPC available for mistakes in EPO Form 1038 (1038E) incorrectly authorising debitting of the reduced appeal fee (yes)
Criteria for assessing a request for correction under Rule 139, first sentence, EPC
Correction allowed (yes)
Entitlement of a company to the reduced appeal fee detectable from the file at the end of the appeal period (according to experience, without evidence, generally no)

1. From the company name of an appellant alone it can generally not be derived that the appellant does not meet the conditions of Rule 6(4,5) EPC in conjunction with European Commission Recommendation 2003/361/EC of 6 May 2003 for payment of the reduced appeal fee. This applies even where a company name is well-known.
2. Where it is not clear from the file at the end of the appeal period whether or not an appellant at the point in time of payment of the reduced fee meets the conditions of Rule 6(4,5) EPC, no clear intention to pay the regular appeal fee can be detected that under the principles of T 152/82 would entitle the EPO to ex officio debit the amount of the regular fee.
3. An appellant who gives a debit order for payment of the reduced appeal fee even though it clearly does not meet the conditions of Rule 6(4,5) EPC commits an obvious mistake in the meaning of J 8/80 and G 1/12. Such an appellant is imputed to have had the clear intention to pay the regular fee, reason why no evidence to prove this intention is required.
4. The exhaustive criteria to assess Rule 139 EPC are "principles" (a) to (c) of G 1/12, i.e. essentially those of J 8/80, points 4 and 6:
(a) The correction must introduce what was originally intended.
(b) Where the original intention is not immediately apparent, the requester bears the burden of proof, which must be a heavy one. The same applies, pursuant to J 8/80, point 6, where the making of the mistake is not self-evident.
(c) The error to be remedied may be an incorrect statement or an omission.
complemented by criterion
(d) balancing of the public interest in legal certainty with the interest of the party requesting correction, with the factors (i.e. sub-criteria of this criterion) relevant to the specific case.
As a rule, criteria (a) to (d) are to be assessed in the order (c), (a), if applicable, together with (b), and (d).