9.1. Introduction

According to R. 103(1)(a) EPC (R. 67 EPC 1973) the reimbursement of appeal fees shall be ordered in the event of interlocutory revision or where the board of appeal deems an appeal allowable, if such reimbursement is equitable by reason of a substantial procedural violation.

R. 103(1)(b) EPC, introduced with the EPC 2000, goes some way towards compensating for the lack of a cross-appeal facility. Appeals filed as a precaution – in case the other party appeals – can be withdrawn if the other party does not file an appeal, at an early stage of the proceedings, during the period between the expiry of the respective periods for filing the notice of appeal and filing the statement of grounds of appeal, i.e. before any great expense or effort on the part of the parties or the EPO (see notes to R. 67 EPC 1973, OJ SE 1/2003, 184).

R. 103(2) EPC, introduced by decision of the Administrative Council of 13 December 2013 (CA/D 16/13; OJ 2014, A3), provides for a reimbursement of the appeal fee at 50% if the appeal is withdrawn after expiry of the period under R. 103(1)(b) EPC, provided withdrawal occurs (a) if a date for oral proceedings has been set, at least four weeks before that date or (b) if no date for oral proceedings has been set, and the board has issued a communication inviting the appellant to file observations, before expiry of the period set by the board for filing observations.

R. 103(3) EPC (formerly R. 103(2) EPC) governs the competence of the department of first instance and of the board of appeal in the matter of the reimbursement of the appeal fee and codifies the case law of the Legal Board of Appeal (J 32/95, OJ 1999, 733; G 3/03, OJ 2005, 344; see in this chapter V.A.9.6.2. "Competence to decide on reimbursement").

For the rules formally applicable to patent applications pending on the date of entry into force of the EPC 2000, see J 10/07 (OJ 2008, 567); for the applicability of R. 103(1)(b) EPC see T 2052/08.

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