2.5.3 Appeal filed within the time limit

Art. 108, first sentence, EPC requires notice of appeal to be filed at the EPO within two months of notification of the decision being contested.

In T 389/86 (OJ 1988, 87) the board stated that an appeal which was filed after pronouncement of a decision in oral proceedings but before notification of the decision duly substantiated in writing complied with the time limit pursuant to Art. 108, first sentence, EPC 1973. See also T 427/99, T 1125/07 and T 1431/12.

Where the translation of the notice of appeal in an official language of the EPO was not filed in due time, the notice was deemed not to have been received according to Art. 14(5) EPC 1973 and the appeal not to have been filed (T 323/87, OJ 1989, 343; see also T 126/04). Where the notice of appeal was filed in a non-official language by a company not entitled to benefit from the provisions of Art. 14(4) EPC 1973 and a translation into an official language was filed on the same day, the notice of appeal was nonetheless deemed not to have been filed. In view of G 6/91 (OJ 1992, 491), where the translation was filed at the same time as the original, the EPO could not take it as the "official" notice of appeal and ignore the original as superfluous. As further stated in G 6/91 "a translation cannot become the original; whatever the date on which it is filed it remains a translation, with all ensuing legal consequences, including the possibility of correction to bring it into conformity with the original" (T 1152/05 and T 41/09). The residence or principal place of business of the professional representative used was irrelevant (T 149/85, OJ 1986, 103 and T 41/09).

In T 2133/10 the board referred to G 6/91 that a party who wanted to benefit from a fee reduction under R. 6(3) EPC must file the translation "no earlier than simultaneously" with the original. From a contextual reading of these separate parts the board inferred that the terms "at the same time" and "simultaneously" were used synonymously and were meant at least to cover the case at hand, i.e. where the original and translation were filed together in a single filing on the same date. Thus, if the original and translation are filed together a fee reduction under R. 6(3) EPC should apply.

Concerning the interpretation of Art. 108 EPC, the President of the EPO has referred the following point of law to the Enlarged Board of Appeal (Art. 112(1)(b) EPC): If notice of appeal is filed and/or the appeal fee is paid after expiry of the two month time limit under Art. 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed? The case is pending under ref. No. G 1/18. The question was already referred to the Enlarged Board of Appeal by technical boards in two cases, G 1/14 and G 2/14. However, the Enlarged Board did not answer it as in G 2/14 the patent application was deemed to be withdrawn, and in G 1/14 the referral was found inadmissible. On this, see also, in the section on "Reimbursement of appeal fees", chapter V.A.9.3., which deals with the distinction between inadmissible appeals and those deemed not filed).

According to T 1281/01 the legal fiction that the decision (under appeal) had been delivered on the tenth day following its posting (R. 78(2) EPC 1973) did not apply when it had actually been delivered to a previously authorised representative after she had notified the EPO that the file had been transferred to another representative. Pursuant to R. 82 EPC 1973, the decision under appeal was deemed to have been notified on the date it was received by the authorised representative and the appeal had thus been filed in due time.

Similarly, where an appellant was misled by the EPO into thinking that the decision issued was only a draft, being replaced by a second one, it was sufficient if he filed the appeal within four months of notification of the second written decision (T 830/03).

Where the opposition division misleadingly issued two decisions, it sufficed if the statement of grounds of appeal was filed within the time limit applicable to the second decision, even if it was outside the time limit for the first decision (T 993/06).

In T 124/93 the parties were misled by the re-dating of the decision by the opposition division. Following the principle of good faith governing the relationship between the EPO and the parties acting before it, their submissions received after expiration of the normal terms were considered to have been made in due time (see e.g. T 124/93, T 1176/00 and T 1694/12 in comparable cases).

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