T 0370/11 () of 19.8.2014

European Case Law Identifier: ECLI:EP:BA:2014:T037011.20140819
Date of decision: 19 August 2014
Case number: T 0370/11
Application number: 03796701.5
IPC class: A61K 31/444
A61K 31/454
A61P 1/00
A61P 9/00
A61P 11/00
A61P 15/00
A61P 29/00
A61P 31/00
A61P 33/00
A61P 37/00
A61P 43/00
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 216 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Applicant name: The Feinstein Institute for Medical Research
Opponent name: AstraZeneca AB
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention Art 108
European Patent Convention R 103(2)
European Patent Convention R 101(1)
Keywords: Reimbursement of appeal fee (partly) - withdrawal of patent proprietor's appeal
Admissibility of opponent's appeal (no) - missing statement of grounds


Cited decisions:
Citing decisions:

Summary of Facts and Submissions

I. The opposition division decided to maintain the European Patent No. 1 581 223 in amended form on the basis of auxiliary request I filed at the oral proceedings before the opposition division. The interlocutory decision was sent to the parties on 28 December 2010.

II. On 17 February 2011 the opponent filed a notice of appeal. The fee for appeal was received on 18 February 2011.

III. On 24 February 2011 the patent proprietor also filed a notice of appeal, and paid the appeal fee on the same date. The patent proprietor's statement of grounds of appeal was received on 5 May 2011.

IV. As no statement of grounds of appeal on behalf of the opponent was received by the end of the time limit in Article 108, third sentence, EPC, the opponent was informed by communication of the registrar of the board sent as registered letter on 31 May 2011 that no statement of grounds had been filed, and that it was to be expected that its appeal would be rejected as inadmissible. The opponent's acknowledgement of receipt of said communication was received by the EPO on 16 June 2011. However, the opponent did not file any reply to the communication.

V. A summons to oral proceedings before the board to be held on 1 December 2014, accompanied by a communication pursuant to Article 15(1) RPBA, was sent to the parties on 20 June 2014.

VI. With its letter dated 23 July 2014 the patent proprietor withdrew its appeal and requested reimbursement of 50% of the appeal fee pursuant to Rule 103(2)(a) EPC.

Reasons for the Decision

1. The appeal filed by the patent proprietor is admissible.

As the patent proprietor's appeal has been withdrawn more than four weeks before the date set for oral proceedings, 50% of the appeal fee is to be reimbursed (Article 103(2)(a) EPC). Although Rule 103(2) EPC does not specify on what basis the 50% is to be calculated, the board is of the view that the provision can only mean that the 50% is to be calculated on the basis of the appeal fee actually paid by the appellant-patent proprietor, and not on the basis of the rate of the appeal fee applicable on the date of withdrawal or reimbursement.

2. As no statement of grounds of appeal has been filed by the opponent, its appeal has to be rejected as inadmissible pursuant to Rule 101(1) EPC in conjunction with Article 108 EPC.


For these reasons it is decided that:

1. 50% of the appeal fee paid by the patent proprietor is to be reimbursed.

2. The appeal filed by the opponent is rejected as inadmissible.

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