Key points
- The EPO's practice is that if you do not file a timely response under Rule 70a(2) EPC, you have to pay two further processing fees, namely also for the missing indication of the intention to proceed further under Rule 70(2).
- A European patent attorney decided to bring the matter to the Boards. The Board's preliminary opinion was to confirm established practice, based on J 26/95.
- The attorney started by requesting a decision under Rule 112(2) in reply to the Notice of loss of rights and, on an auxiliary basis, requested a refund of one of the two paid further processing fees.
- The Examining Division refused these requests with a separately appealable interlocutory decision taken by a formalities officer on behalf of the Examining Division.
- The applicant then appeals. The applicant however pays the appeal fee at the reduced rate, though it is not entitled to the reduction.
- The appellant did not request a correction of the debit order.
- The appeal is rejected as deemed to not have been filed.
- The appeal fee is refunded.
- The applicant hence got a preliminary opinion of the Board on the matter for free, in the sense of incurring no official fees.
- A further interesting aspect is that the grant proceedings continued in parallel with the appeal because the appeal concerns only the refund of a fee. By the same token, when the application was deemed to be withdrawn, the appeal continued.
EPO
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/2023/01/j-001319-appeal-fee-and-further.html
