3.1. Fiction of fee payment in due time – ten-day fail-safe arrangement

Under Art. 7(3), (4) RFees, provided that certain requirements are met, the period for payment of a fee is considered to have been observed even if payment is not received until after expiry of the period in which it should have been made. If the payment was undertaken no later than ten days before expiry of said period, no surcharge becomes payable under Art. 7(3) RFees. However, as confirmed in J 25/12, payment of a surcharge does not create a possibility to pay a missing fee amount after expiry of the period for payment. For the application of the rule see T 842/90 and J 20/00. In the latter case, which concerned the payment of a renewal fee, the board held that it applied, because in effect the due date for payment of a renewal fee marks the last day of a period (R. 37(1) EPC 1973; cf. R. 51(1) EPC) during which this fee can be validly paid.

Art. 7(3) RFees does not apply to key dates after which payments reaching the EPO are affected by a fee increase (J 18/85, OJ 1987, 356).

According to J 7/08, a period for payment may be deemed to have been observed within the meaning of Art. 8(3) RFees 1973 (cf. Art. 7(3) RFees) even if the receipt of the funds after the expiry of the period is no longer attributable to the original transfer order, but to another payment transaction initiated in the meantime (see also J 22/85, OJ 1987, 455).

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