9.7.3 Violation of the principle of the protection of legitimate expectations

In T 308/05 the board ruled that the appeal fee was to be reimbursed even though the appeal had been withdrawn. Referring to J 30/94 and J 38/97 (see below) the board held that the fact that in the case in hand the EPO had been found to have breached the principle of the protection of legitimate expectations, and that the consequence had been the filing of an appeal which was objectively superfluous, made it necessary for reasons of equity to refund the appeal fee paid by the appellant. See also T 1785/15.

In J 30/94 the board held that Art. 109(2) EPC created a legitimate expectation of the parties that an appeal would be remitted to the board of appeal within a reasonable time after the decision of the department of first instance not to allow the appeal. The board held EPO had clearly offended against this legitimate expectation because the appeal was only referred to the Boards of Appeal seven years after its filing. The board found it equitable under these exceptional circumstances to order the reimbursement of the appeal fee even though the appeal had been withdrawn.

In J 38/97 the appeal was found inadmissible but the appeal fee was nevertheless refunded. The board took the view that the appellant, having requested an appealable decision, could legitimately expect the impugned decision to be issued by the competent department and not by a person lacking legal authority. In accordance with the principle of good faith, it was equitable in these circumstances to order the reimbursement of the appeal fee.

In T 1423/13 the examining division had issued a communication to the appellant in which it stated that "in case no allowable set of claims is presented, the next office action will be the summons to oral proceedings". The board held that this statement was a source of legitimate expectation for the appellant; the examining division then violated this principle by issuing the decision to refuse the application without summoning the applicant to oral proceedings. It thus took the applicant by surprise, thereby depriving it of a further opportunity to present arguments or its final fall back positions. The appeal fee was reimbursed.

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