a)
Reimbursement held not to be equitable 

In J 22/85 (OJ 1987, 455) the board did not consider a reimbursement of the appeal fee to be justified because the appellant had failed to provide the Receiving Section with the evidence subsequently submitted in the appeal proceedings.

In T 167/96 the impugned decision did not meet the minimum requirements for a reasoned decision. Although there was no doubt that this lack of reasoning amounted to a substantial procedural violation, the board did not consider that a refund of the appeal fee was equitable. The appellant had availed himself of the appeal procedure to file necessary amendments which the opposition division had sought in vain over a period of years to elicit from him (see also T 908/91).

In J 18/96 (OJ 1998, 403) the Receiving Section had failed to observe the provisions concerning examination on filing. Although the appeal was allowed on the ground, inter alia, of a procedural violation, the reimbursement of the appeal fee was not equitable because the appellants themselves had contributed to the failure of the proceedings before the Receiving Section.

In J 4/09 the board said that, as a rule, an applicant could be regarded as behaving inequitably if it made no use of opportunities to participate in the initial proceedings. In this case, it had not reacted to the Receiving Section's communication; only in its statement of grounds for appeal had it drawn attention to an obvious inconsistency.

In T 1216/02 the board held that, albeit for reasons outside the knowledge and control of the examining division, the refusal decision had been based on evidence on which the applicant had not had an opportunity ‒ viewed objectively ‒ to present his comments. This constituted an objective substantial procedural violation under R. 67 EPC 1973. However, the board did not deem reimbursement of the appeal fee equitable, because the appellant should have facilitated further substantive examination in the event of remittal or interlocutory revision by including in his statement of grounds of appeal a substantive response to the examining division's communication, based on the document which, at the time when the appeal was filed, he had known to be correct.

In T 427/03 the decision (to revoke the patent) under appeal was set aside by reason of a substantial procedural violation – no reference to any Article or Rule of the EPC as the legal basis for the revocation, no reasoning is provided to justify the revocation. However, the board did not find it equitable to reimburse the appeal fee as the appellant had contributed to the situation by filing a new set of claims 16 months after the announcement of the opposition division at the end of the oral proceedings that the patent could be maintained in amended form on the basis of the last set of claims put forward at the end of the oral proceedings instead of providing an adapted description as requested.

In T 1500/10 the board held that if oral proceedings took place at the instance of the EPO because it considered this to be expedient under Art. 116(1) EPC and the duly summoned party does not attend them without serious reasons, this conduct might have the consequence that it would not be equitable to reimburse the appeal fee.

In T 674/12 the board held that the appellant, by filing different unclear requests, did not help to expedite the proceedings and contributed to the fact that the decision of the examining division was based on a request which was no longer in the proceedings. The board considered the reimbursement of the appeal fee not to be equitable.

In T 1750/14, the appellant's representatives requested a postponement of the final date (under R. 116(1) EPC) repeatedly and separately from their request to postpone the date for oral proceedings. The specific reasons for not allowing any postponement of the final date ‒ regardless of the refusal of the request for postponement of the date for oral proceedings ‒ were not addressed in the decision of the examining division. The board held that the examining division had committed a substantial procedural violation. Nevertheless the board held that the applicant ‒ and in particular its professional representative ‒ must or should have known, in view of the last sentence of R. 116(1) EPC that it is generally not guaranteed that any written submission is automatically admitted into the proceedings before the EPO for the sole reason that it is filed prior to the final date, nor is it entirely unlikely that a submission may be admitted at the department's discretion when filed after that date. The applicant could have followed the invitation from the examining division and attempted to file, for example, amended sets of claims with the aim of overcoming the objections raised in the summons. This, however, was not done by the applicant of its own volition. In the board's view, such procedural behaviour spoke against regarding the reimbursement of the appeal fee as equitable within the meaning of R. 103(1)(a) EPC. A party cannot gain a procedural advantage from an omission of its own.

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