Key points
- "By letter dated 2 April 2020, received by the EPO on the same date, the appellant withdrew its appeal and stated: "It is requested to refund 75% of the appeal fee."
- "Only Rule 103(2) EPC could offer a legal basis for a 75% reimbursement of the appeal fee and this reads as follows: "The appeal fee shall be reimbursed at 75% if, in response to a communication from the Board of Appeal indicating its intention to start substantive examination of the appeal, the appeal is withdrawn within two months of notification of that communication.""
- The Board finds that "there had been no communication from the board indicating its intention to start substantive examination of the appeal, and therefore one of the conditions set out in Rule 103(2) EPC had not been fulfilled" (preliminary opinion, cited and confirmed in the decision)
- " the appellant [argued that ] it was clear from the logic of Rule 103 EPC that there was a temporal sequence starting with Rule 103(1) EPC almost at the beginning of the appeal procedure and ending with Rule 103(4) EPC almost at the end of the appeal procedure. Applying Rule 103(3) EPC in between, timewise, Rule 103(1) EPC and Rule 103(2) EPC would break this logic. Further, the straightforward interpretation of Rule 103 EPC showed a monotonically decreasing sequence of rates, i.e. 100%, 75%, 50%, 25% and, implicitly, 0%. These arguments are not convincing. "
- "Paragraphs (1) to (4) of Rule 103 EPC contain various provisions for a full or partial refund of the appeal fee in the event of a withdrawal of the appeal. Whether and to what extent the appeal fee must be reimbursed depends on whether the requirements of one of these provisions are met. This means that the reimbursement of the full or partial appeal fee does not depend on a temporal sequence. Thus, it may well be that no communication within the meaning of Rule 103(2) EPC is issued in an appeal case and that therefore a 75% reimbursement of the appeal fee is not available at all."
EPO T 0853/16
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/03/t-085316-no-communication-within.html
