Thursday, June 16, 2016 T 1325/15 - Inadmissible or simply not filed?

Appeals!

This appeal revisits the question whether an appeal is to be found inadmissible or deemed not to have been filed if the notice of appeal is filed within the time limit, while the appeal fee is paid only after expiry of the time limit for filing the notice of appeal.

It is recalled that Article 108 EPC, second sentence, reads "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid", without explicitly specifying that the fee for appeal should have been paid on time, i.e., within the applicable time limit.

The issue had already been referred to the Enlarged Board of Appeal by T 2017/12 and T 1553/13, without either referral resulting in an answer.

The Board's conclusion is in line with the established practice: the late filing of a document is treated in the same way as its non-filing. As such, the appeal is deemed not to have been filed by the Board.

Catchwords: See points 34 to 43 of the reasons

Reasons for the Decision

1. The appellant's letter dated 1 February 2016, filed after the closure of the debate, is disregarded because the Board sees no reason to reopen the debate (Article 15(5) RPBA).

2. Pursuant to Article 110 EPC, it is first to be examined whether an admissible appeal was validly filed.

(...)

Consequence of filing an appeal out of time

34. In decisions T 2017/12 (OJ EPO 2014, A76) and T 1553/13 (OJ EPO 2014, A84), the deciding boards referred to the Enlarged Board of Appeal the question whether an appeal is to be found inadmissible or deemed not to have been filed if the notice of appeal is filed and the appeal fee paid only after expiry of the time limit for filing the notice of appeal. The procedural situation in the present case is the same.

For various reasons, neither referral has resulted in an answer to this question.

35. Both referral decisions concentrated on the meaning of Article 108 EPC, second sentence, EPC, which reads "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid". In numerous decisions the boards of appeal had interpreted this provision as meaning that an appeal did not come into existence, i.e. the notice of appeal was deemed not to have been filed, if the appeal fee was not paid within the two-month time limit of Article 108, first sentence, EPC. In a smaller number of deviating decisions, the boards of appeal dismissed the appeal as inadmissible where the notice of appeal was filed and the appeal fee paid after expiry of the time limit.

36. Referring to Articles 31 and 32 of the Vienna Convention on the Law of Treaties and decision G 5/83 (OJ EPO 1985, 64), both referring boards noted that the EPC was to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the EPC in their context and in the light of the EPC's object and purpose. They then observed that the ordinary meaning of Article 108, second sentence, EPC appeared to be that before the appeal fee had been paid the appeal was deemed not to have been filed, and that once the fee had been paid the aforementioned provision no longer applied, with the consequence that the appeal was filed. No relationship between the payment of the appeal fee and the time limit for filing the appeal could be derived from the literal wording of Article 108 EPC. The boards saw no reason why Article 108, second sentence, EPC was to be read as "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid in time".

37. Although there is no doctrine of binding precedent under the EPC, the principles of legal certainty and uniform application of the law require a board of appeal having to decide on a particular legal question to take into account how the question was decided in earlier decisions. A board is hence not bound by an earlier decision in an unrelated case, but it must give appropriate weight not only to the reasons given for resolving a particular question in a particular way, but also to the extent to which the solution adopted has found acceptance in later decisions. Thus, where in the jurisprudence of the boards of appeal a particular interpretation of a provision has been adopted which over many years has proved to be a satisfactory and predictable solution, a compelling reason should exist to justify giving preference to a different interpretation.

The Board sees no compelling reason to deviate from the established approach of regarding an appeal filed out of time as deemed not to have been filed. Furthermore, as explained below, it considers this approach also to be in line with an interpretation of the EPC in accordance with the customary principles of treaty interpretation as codified in the Vienna Convention on the Law of Treaties.

38. According to those principles, the starting point for the interpretation of a provision is its wording. As the Enlarged Board of Appeal has explained in decision G 2/12 (OJ EPO 2016, A27), however, it may well be that the wording only superficially has a clear meaning. The result of a literal interpretation must, therefore, be confirmed inter alia by a systematic interpretation of the provision taking into account its function and position within the EPC as a whole (see reasons V, under (3) and (4), VII.1, under (1), and VII.2, under (1)).

39. The interpretation of Article 108, second sentence, EPC as meaning that filing of the notice of appeal and payment of the appeal fee after the expiry of the time limit of Article 108, first sentence, EPC results in the appeal having been filed (but out of time) presupposes that the late filing of the notice of appeal is, at least to an extent, legally effective and not to be treated as if no notice of appeal has been filed at all. This assumption deserves closer examination.

40. Numerous provisions of the EPC specify that a certain document is to be filed within a particular time period or "in due time". In the latter case, the Implementing Regulations either specify the corresponding time limit or leave that to the EPO ("within a period to be specified"). In almost all cases, the EPC also specifies the legal consequence of not filing the document "in due time" without, however, distinguishing between late filing and non-filing. In a few cases the timely filing of the document is a condition for a certain provision to be triggered and the consequence of both late filing and non-filing is simply that the provision is not triggered. For example, if an applicant does not file the supporting certificate of Article 55(2) EPC within four months of filing the application (Rule 25 EPC), it cannot benefit from Article 55(1) EPC. Another instance is the filing of a request for a decision on a loss of rights under Rule 112(2) EPC. Thus, the general rule is in fact that the late filing of a document is treated in the same way as its non-filing (a possible exception being the special case of the priority period of Article 87(1) EPC).

41. Article 108, first sentence, EPC requires that notice of appeal be filed within two months of notification of the decision. If no notice of appeal is filed, then no appeal comes into existence. Although the position that Rule 101(1) EPC means that a late-filed notice of appeal brings into existence an inadmissible appeal may be not unreasonable, in view of the general rule that no distinction is to be made between the late filing and the non-filing of a document, the Board considers that no appeal exists where a notice of appeal was not (deemed to be) filed in due time.

42. The Board notes that its approach, although it has not always consistently been applied in the jurisprudence of the boards of appeal, is also in line with the reasoning in earlier decisions which have argued that an appeal is deemed not to have been filed where the appeal fee was paid in time but the notice of appeal was filed only after expiry of the two-month period of Article 108(1) EPC (see in particular decisions J 19/90 of 30 April 1992, reasons 1.2.2 and 4; T 445/98 of 10 July 2000, reasons 1.2, 5, 6 and 7; and T 778/00, OJ EPO 2001, 554, section V of the facts and submissions and point 6 of the reasons).

43. It follows that in the present case the appeal is deemed not to have been filed and that, consequently, the appeal fee is to be reimbursed.

(...)

Order

For these reasons it is decided that:

(...)

2. The appeal is deemed not to have been filed.

3. The appeal fee is to be reimbursed.

This decision T 1325/15 (pdf) has European Case Law Identifier: ECLI:EP:BA:2016:T132515.20160607. The file wrapper can be found here. Photo "Appeals!" by Jon Candy obtained via Flickr under CC BY-SA 2.0 license (no changes made).