9.8.2 Withdrawal of appeal under Rule 103(2) EPC

According to R. 103(2) EPC, as amended on 13 December 2013 (CA/D 16/13; OJ 2014, A3), the appeal fee is reimbursed at 50% if the appeal is withdrawn after expiry of the period under R. 103(1)(b) EPC and certain conditions are met (see in this chapter V.A.9.1.). These rules apply to appeals pending at their entry into force, i.e. on 1 April 2014, and to appeals filed thereafter. In T 1086/09 the board held that a letter received on 28 March 2014 stating that the appeal should be withdrawn "hereby" would mean that the appeal was withdrawn on 28 March 2014, and thus no longer pending on 1 April 2014. In T 370/11 the board held that the 50% was to be calculated on the basis of the appeal fee actually paid, and not on the basis of the rate of the appeal fee applicable on the date of withdrawal or reimbursement.

In T 1402/13 of 31 May 2016, the board stated that under R. 103(1)(b) and (2) EPC the termination of appeal proceedings caused by a loss of rights due to the non-payment of renewal fees could not be equated to a declaration of withdrawal of the appeal. This result was also supported by the travaux préparatoires (CA/90/13 Rev. 1), which explicitly required the appellant to make a procedural declaration. In order to claim entitlement to reimbursement under R. 103(2) EPC, the appellant was required, at a time when its application was still pending, to make a procedural declaration that left no doubt that withdrawal of the appeal was intended. As this was not the case, the request for reimbursement of the appeal fee was rejected.

In T 265/14 the appeal had been withdrawn after expiry of the period set by the board in a first communication inviting the party to file observations under R. 100(2) EPC but before expiry of the period set in a second communication. The board held that R. 103(2)(b) EPC was not to be interpreted as definitively ruling out reimbursement of 50% of the appeal fee where no observations were filed within the period set under R. 100(2) EPC. If a board then set a new period for filing observations, it thereby gave the appellant a fresh opportunity to withdraw the appeal, with the effect of reducing the fee, within that period. So the board concluded that issuing a second invitation under R. 100(2) EPC was to be treated as equivalent to setting a date for oral proceedings after expiry of the period set in the first invitation, which likewise reopened the possibility of the reimbursement of the appeal fee under R. 103(2)(a) EPC. That reimbursement was possible in those circumstances supported the view that R. 103(2) EPC as a whole was to be interpreted broadly in the light of its object and purpose and that both its scenarios could be treated in the same way.

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