T 2121/08 () of 3.3.2009

European Case Law Identifier: ECLI:EP:BA:2009:T212108.20090303
Date of decision: 03 March 2009
Case number: T 2121/08
Application number: 02788334.7
IPC class: H05B 37/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 17 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Method and apparatus for controlling lighting based on user behavior
Applicant name: Koninklijke Philips Electronics N.V.
Opponent name: -
Board: 3.4.03
Headnote: -
Relevant legal provisions:
European Patent Convention 1973 Art 109(1)
European Patent Convention R 100(2)
European Patent Convention R 103(1)(a)
European Patent Convention R 103(1)(b)
European Patent Convention R 103(2)
Keywords: Reimbursment of appeal fee (no)
No grounds given


Cited decisions:
J 0030/94
J 0032/95
J 0038/97
T 0308/05
Citing decisions:

Summary of Facts and Submissions

I. This is an appeal against the decision of the examining division refusing European patent application No. 02788334.7.

II. The appellant filed a notice of appeal and paid the appeal fee on the same day. In the timely filed statement of the grounds of appeal the appellant requested that the decision be set aside and a patent be granted on the basis of a new set of claims filed with the statement of the grounds of appeal. Reasons were given why the newly filed claims are patentable.

III. The appellant further requested reimbursement of the appeal fee and oral proceedings. No reasons were given in support of the request for the reimbursement.

IV. Rectification pursuant to Article 109(1) EPC was ordered by the Examining Division. The request for reimbursement of the appeal fee was not allowed, so that the case was referred to this board (Rule 103(2) EPC).

V. In a communication under Rule 100(2) EPC the board indicated that no reasons were apparent which would justify the requested reimbursement. The appellant was asked to indicate whether the request for oral proceedings in respect of the ancillary issue of the reimbursement was upheld.

VI. The appellant informed the board that the request for oral proceedings was not maintained.

Reasons for the Decision

1. The appeal is admissible.

2. The conditions for the reimbursement of the appeal fee are laid down in Rule 103(1)a and b EPC. One condition is that the reimbursement must be equitable by reason of a substantial procedural violation. The second condition is that either the examining division rectified its decision pursuant to Article 109 EPC or the board deemed the appeal to be allowable.

3. In the present case the examining division did rectify its decision, but did not order the reimbursement. In such cases the Boards of Appeal are still competent to issue such an order, cf. Rule 103(2) EPC, last sentence. Reference is made to J 32/95 (OJ EPO 1999,713), see Headnote.

4. The appellant did not give any reasons why the reimbursement should be equitable by reason of a substantial procedural violation, as required by Rule 103(1)a EPC. Nor does the board perceive any such reasons, or any exceptional circumstances which, if at all, might have justified a reimbursement of the appeal fee even beyond the scope of Rule 103(1)(a) EPC for reasons of equity, see T 308/05 of 27 February 2006 (point 5 of the reasons), J 30/94 of 9 October 1995 and J 38/97 of June 1999 (none published in OJ).

5. Since in the present case Rule 103(1)b EPC is not applicable either, there is no legal basis for a reimbursement of the appeal fee.


For these reasons it is decided that:

The request for reimbursement of the appeal fee is refused.

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