9.3.3 Appeal inadmissible

When an appeal is filed but inadmissible it has come into existence and it is in principle not possible to reimburse the appeal fee (T 445/98, see also J 16/94, T 372/99, T 752/05). For the distinction between the existence of an appeal and the admissibility of an appeal, see also T 460/95 of 20 October 1997 and T 778/00, OJ 2001, 554.

In T 13/82 (OJ 1983, 411) the board held that the appeal fee cannot be refunded on the basis that no statement of grounds was filed, or that it was filed too late (see also T 324/90, OJ 1993, 33, T 576/93). In T 89/84 it was held that this applied independent of whether the statement of grounds were not filed as a result of a genuine omission (as was the case T 13/82, OJ 1984, 562), or because the appeal was filed as a precautionary measure (see also T 543/99).

In J 15/01 the Legal Board ruled that the fact that an appeal was against a communication, as opposed to a decision under Art. 106(1) EPC 1973, did not justify refunding the appeal fee. If ‒ as in the case before it ‒ the board concluded that there had not been an appealable decision under Art. 106(1) EPC 1973, this made the appeal inadmissible but did not mean it had never existed, the requirements under Art. 108 EPC 1973 having been met. The appeal fee could not therefore be refunded.

In J 38/97 the Legal Board held that the appeal was inadmissible, but nevertheless held that it was equitable in the circumstances of the case (violation of the principle of the protection of legitimate expectation) to order the reimbursement of the appeal fee (see also in this chapter V.A.9.7.3).

In T 1897/17 the board held that an appeal lodged after the expiry of the two-month period (Art. 108 EPC) was inadmissible. The board stated that it did not concur with the majority interpretation in decisions of the boards of appeal that an appeal was 'deemed not to have been filed' if the notice of appeal or the payment of the appeal fee were received outside this period. The board further held that as the appeal fee was paid in accordance with Art. 108 EPC and Art. 2 (1) No. 11 RFees in order to validly form an appeal, it was not paid without any legal basis, and that since none of the conditions of R. 103 EPC applied, the appeal fee could not be reimbursed (see in this chapter V.A.9.3.7 "Reimbursement of the appeal fee in case of a request for re-establishment"). This decision has triggered a referral to the Enlarged Board to consider the diverging case law (see in this chapter V.A.9.3.4 below).

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