T 1402/13 - Deemed to be withdrawn as no renewal fee paid, but when?
If the renewal fee is not paid by the due date, and also not by the end of the 6-month period to pay it with an additional fee, when is the European application deemed to be withdrawn? There seems to be no doubt about it since the November 2015 Guidelines for Examination: it reads in A-IV, 1.1.1 "In the event of non-payment of a renewal fee by the due date (Rule 51(1)), the application is pending up to the last day of the six-month period for payment of the renewal fee with an additional fee (Rule 51(2)), and a divisional application may still be filed during this period – even if the fees are ultimately not paid. Deemed withdrawal of the application takes effect on expiry of the six-month period." The Guidelines paragraph reflects what was written in the OJ 2007, SE 4, page 86, item 4: "Article 86(3) EPC is also deleted and the legal consequence of a failure to pay the renewal fee in due time is added to Article 86(1) EPC. It is emphasized that this does not modify the current situation, and under the Implementing Regulations to the EPC 2000 the application shall only be deemed to be withdrawn if the renewal fee and any additional fee have not been validly paid within the prescribed grace period for payment (see Rule 51(2) EPC 2000)." Nevertheless... the Board decided differently in this case.