Tuesday, August 13, 2019 G 1/18 - late appeal fee or notice: appeal deemed not filed

The Enlarged Board of Appeal issued opinion G 1/18 on 18.07.2019 on the distinction between an appeal deemed not to have been filed and an inadmissible appeal (where the appeal fee was paid late and/or the notice of appeal was filed late, i.e. outside the 2-month time limit of Art. 108 EPC), and on the consequences of this. A news message was posted on the website of the Boards of Appeal on the same day. The complete decision became available online on 31.07.2019, and is at this moment only available in French. We cite the complete news message and some selected parts of the decision below.

Tuesday, July 02, 2019 T 551/15 - Outcome of G 1/18 not relevant (?)

Within the two-month period under Article 108 EPC, the opponent filed notice of appeal and paid the corresponding appeal fee. On 17 March 2015, i.e. prior to the expiry of the two-month period under Article 108 EPC, the patent proprietor submitted, via the electronic filing system, a document entitled "Letter accompanying subsequently filed items". The document indicated the patent application number, the name and address of the representative and the representative's reference number. Under the heading "Fees" it specified the fee for appeal, and under the heading "Payment" it contained a debit order authorising the EPO to debit the appeal fee from the deposit account, followed by the details as to the deposit account and an indication relating to where any reimbursement was to be made. The document did not contain any further text, nor was it accompanied by any further document. The payment of the appeal fee was effected with the date of 17 March 2015. In its statement of grounds of appeal, the patent proprietor stated: "Further to the Notice of Appeal filed on 17.03.2015 by the payment of the appropriate fee, we hereby submit the Grounds of Appeal...". Together with this letter, the patent proprietor filed claim sets as the main request and auxiliary requests. Did the proprietor file a notice of appeal? If so, did he file it in time or too late? if it was too late, was the appeal deemed not filed or inadmissble? Did the proprietor's appeal get into existence? Did the opponent get the appeal fee reimbursed (which can only be done if there was no legal basis for its payment or if there is a legal provision for the refund/reimbursement)? What is the effect of G 1/18 on this case - in particular, did it need to be stayed? Is it of relevance herein that appeal proceedings anyhow got into existence due to the appeal of the opponent, and that the proprietor would be a party as of right in both situations (deemed not filed or inadmissible)? If G 1/18 is applicable, but the case is not stayed as the outcome on the merits of the appeal does not change, can a decision on the reimbursement/refund be made without staying in view of the relevance of G 1/18 on that decision (esp. as refund is not at the discretion of the EPO/Board)?  

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

Friday, March 18, 2016 T 0105/11: a requested correction of a decision and a too late filed ground of appeal

Admissibility of an appeal is quite often a point of discussion. In this case the Examining Division refused to grant a patent in a decision and the Applicant requested a correction of the (original) decision. When the Examining Division re-issued the decision it was not made completely clear that the re-issued decision was a correction of the previous decision (however, this is implicitly clear because the Applicant requested a correction). Case law defines that a correction of a decision has retrospective effect and that, thus, the date of refusing the patent application does not change and, thus, the appeal term still starts at the date of the original decision. In this case the Applicant filed a notice of appeal within the 2 months from the original decision, but filed the ground of appeal after the end of the 4 months period from the date of the original decision (and within 4 months from the date on which the decision was re-issued). In some appeal cases the principle of "protection of legitimate expectations" was applied in "similar" cases and the appeal was admissible. However, the Board had some doubts that this situation was similar enough to the previous cases. "Albeit not entirely without hesitation", the Board decided on this subject.

Tuesday, January 19, 2016 T 399/13 - No why, so inadmissible

When filing the appeal against the decision from the Opposition Division, the appellant filed three new sets of amended claims and arguments as to their allowability, but did not give a reasoning why the appealed decision was wrong. Without this necessary link between the contested decision and the statement of grounds, the appeal was held inadmissible by the Board.

Friday, January 30, 2015 T 1101/14 - Don't put the blame on your secretary, if you as a representative failed yourself!

A representative  mistakenly signed a statement of grounds of appeal having most of its pages missing. As a result, the statement of grounds of appeal, did not indicate the reasons for setting aside the impugned decision or the extent to which it was to be amended - and the Board came to the preliminary conclusion that the appeal appeared to be  inadmissible. The representative tried to argue all due care, referring to the secretary's reliability (trying to put all the blame on her), but ignoring the representative's own lack of particular care when checking and signing the documents to be submitted. But: no excuses for not having checked that carefully! 

Summary of Facts and Submissions

I. The appeal lies against the decision of the examining division [...]

II. The appellant filed a notice of appeal on 31 Janu­a­ry 2014 and paid the appeal fee on the same day. On 11 April 2014, the appellant submitted, electro­nically, amended claims and description pages accor­ding to a main request and auxiliary requests 1-3, accom­panied by a letter stating the following:

"In the matter of the Appeal, we enclose herewith the Grounds of Appeal, to­gether with amended description pages and claims in re­lation to a Main Request and First to Third Auxiliary Re­quests. We request that the decision of the Examining Division be set aside in its entirety, and that a pa­tent be granted based on the application in the form of the Main Request. If the Appeal Board considers that the Main Request is not permissible, we respectfully request an opinion in relation to the allowability of the First to Third Auxiliary Requests. We request Oral Proceedings in the event that any of the Requests are not considered allow­able by the Appeal Board."

No fur­ther reasons were received with that submission, nor did the letter contain a list of intended enclosures.

III. With a summons to oral proceedings, the board informed the appellant of its preliminary opinion that the letter of 11 April 2014, which the board considered to constitute the statement of grounds of appeal, did not indicate the reasons for setting aside the impugned decision or the extent to which it was to be amended. The board therefore came to the preliminary conclusion that the grounds of appeal did not satisfy the require­ments of Rule 99(2) EPC so that the appeal appeared to be inadmissible pursuant to Rule 101(1) EPC. The appellant was also informed that the oral pro­ceedings would be limited to the question of admissibility.

IV. In response to the summons, received on 26 September 2014, the appellant argued that "the Grounds of Appeal which were filed were not the 'full' intended Grounds" and reques­ted re-establishment of the applicant's right in the application under Article 122 EPC in view of the fact that, in spite of all due care required by the cir­cum­stances having been taken, the Applicant was unable to observe the deadline for filing the grounds of appeal under Article 108 EPC.

V. In a communication dated 8 October 2014, the board in­formed the appellant that the request for re-establish­ment would be dealt with in the planned oral procee­dings and raised a number of questions. Since a sub­mission rela­ting to the grounds of appeal was re­ceived in time, it appeared questionable whether a time limit had been missed at all and therefore whe­ther the re­quest for re-establishment was admissible. The board also noted that the appellant had, in res­ponse to its electronic sub­mission, received an imme­di­ate acknow­ledge­ment of re­ceipt from which the omission of a sepa­rate document con­tai­ning the grounds of appeal should have been appa­rent. In view of this it seemed that the cause of non-compliance had been re­moved directly after trans­mission and that consequently the request for re-establish­ment was not filed within the two-month period pre­scribed by the EPC. Moreover, even if the request for re-estab­lish­ment had been made in good time, the presence of the receipt would appear to have a bea­ring on the assessment of whether all due care re­quired by the circumstances had been taken.

VI. The appellant provided further arguments in a letter dated 23 October 2014.

VII. The appellant's case, insofar as it is relevant to the present decision, can be summarized as follows.

a) By 1 April 2014, the appellant and the repre­sen­tative had come to an agreement as to which do­cu­ments were to be filed as and with the grounds of appeal.

b) On 11 April 2014, a bundle of documents was pre­pared for uploading to the electronic filing sys­tem including, in particular, a letter relating to the appeal procedure comprising a cover letter and a twelve-page annex containing the actual grounds of appeal.

c) The procedure normally followed by the represen­ta­tive and her secretary for an electronic filing con­sisted of five steps:

1. The representative would instruct the secretary which documents were to be filed.
2. The secretary would upload these documents to the local end of the electronic filing system.
3. The representative would click through every page of the uploaded documents and, once verified, electronically sign them.
4. The secretary would perform the "send" function of the electronic filing system and thus have the signed documents transmitted to the EPO.
5. The secretary would receive the electronic receipt of transmission and check whether the documents enclosed for transmission were properly transmitted.

d) This procedure was also followed in the present case. However, two errors occurred. The se­cretary failed in step ii) to upload the twelve-page annex containing the grounds of appeal, and the repre­sen­tative failed to notice in step iii) that this annex was missing before elec­tronically signing the documents for trans­mission.

VIII. The oral proceedings were held on 12 December 2014, at the end of which the chairman announced the decision of the board.

Reasons for the Decision

The admissibility of the request for re-establishment

1. According to Article 122(1) EPC, the remedy of re-estab­lishment is available to an applicant or pro­­pri­e­tor who was unable to observe a time-limit vis-à-vis the European patent office. Given that a statement of grounds of appeal was received in time on 11 April 2014, it might be considered that no time limit was missed at all.

1.1 The appellant argued that the letter received on 11 April 2014 did not constitute the grounds of appeal. This was obvious from the letter because it referred to grounds of appeal which were meant to be "enclose[d] herewith" but which were, in fact, not. The appellant also referred to Rule 99(2) EPC which required the statement of grounds of appeal to contain "the reasons for setting aside the decision impugned [...] and the facts and evidence on which the appeal is based" and argued that the submission of 11 April 2014 clearly did not contain reasons, facts or evidence. According to the appellant, therefore, no grounds of appeal were received at all and hence the time limit under Article 108 EPC for filing the grounds of appeal was missed.

1.2 The board is not convinced by the appellant's argument. Rule 99(2) EPC provides that the statement of grounds of appeal "shall indicate the reasons for setting aside the decision impugned, or the extent to which it is to be amen­ded" (emphasis by the board). When an appellant does not maintain the claims as refused but files amen­ded claims, it is a priori reasonable to assume that the appellant may not want to challenge the rea­sons of decision under appeal but rather wants it to be amen­ded. Thus the absence of reasons in the letter of 11 Ap­ril 2014 does not allow the conclusion that the letter does not constitute grounds of appeal in the sense of Article 108 EPC.

1.3 However, even though something was filed within the appropriate time limit which could be understood to be the statement of grounds of appeal, the board accepts that the submission was incomplete with respect to what was meant to be filed at the time. The appellant poin­ted out that not admitting the request for re-estab­lish­­­ment would, in the present case, be tantamount to denying the appellant its access to the boards of appeal and therefore its only remedy against the deci­sion under appeal, and argued that this would be a dis­proportional consequence of the representative's pro­cedural slip.

1.4 The board agrees with the appellant that Article 122 EPC is intended to provide a remedy for the type of error that occurred in the present case.

2. According to Rule 136(1) EPC, the request for re-es­tablishment of rights shall be filed in writing with­in two months from the removal of the cause of non-com­pli­­ance with the time limit. According to the juris­pru­dence of the boards of appeal, the cause of non-compli­ance is removed on the date on which the person respon­sible for the application is made aware of the fact that a time limit has not been observed or when the per­son concerned ought to have noticed the error if all due care had been taken (see Case Law of the Boards of Appeal of the European Patent Office, 7th ed. 2013, III.E.3.1.1 a)).

2.1 The representative argues that she became aware of her error only when she received the board's communication dated 5 August 2014, so that the two months period started at that point.

2.2 The statement of grounds of appeal was filed electro­nically on 11 April 2014. In immediate response to this filing, the appellant received an acknowledgement of re­ceipt for the submitted documents (see also annex G, filed on 26 September 2014). The pertinent list men­tions a letter of appeal ("APPEAL-LETT-1.pdf") having merely two pages and, apart from that, only amended claims and description pages. In particular, receipt of a twelve-page document containing a statement of grounds was not acknowledged. The board is of the opin­ion that the omission would have been directly apparent to the representative had she checked the acknowledge­ment of receipt.

2.3 The representative has however argued that she [= the representative] does not - and is not required to - check the electronic acknowledgement of receipt, as this is a secretarial task. She explained that, according to the procedure for elec­tronic filing used in her office, the primary pur­pose of the acknowledgement of receipt is to confirm that the documents received at the EPO tally with the trans­mitted ones so that, in the case of a transmission problem, some or all of the documents can be sent again.

2.4 The board considers the electronic fi­ling procedure used in the representative's office and, in particular, the use made of the electronic re­ceipt according to that procedure, to be reasonable. There­fore, the board finds that the date on which the cause of compli­ance was removed was the date when the repre­sen­tative actu­ally learned from the board's summons to oral pro­cee­dings that the statement of grounds had been trans­mitted in­completely. As the board's summons was posted on 5 Au­gust 2014, the appellant's request for re-estab­lishment of rights filed on 26 September 2014 was made within the time-limit prescribed by Rule 136(1) EPC.

3. The request for re-establishment is therefore admissible.

The allowability of the request for re-establishment

4. The appellant has argued that, as required by the ju­ris­­prudence of the boards of appeal, the se­cre­tary was a suitable per­son, properly supervised in the task to be performed, and that the representative had exercised reasonable su­pervision over the secretary's work. Also the re­pre­sentative herself had a hitherto flawless record. Thus, the two errors were uncharacteristic and isolated mis­takes in an otherwise secure system. The appellant did not however give any specific reasons as to why the two errors had occurred in the present case.

5. The board has no doubts regarding the professional qua­lifi­ca­tions of the secretary and no reason to question the quality of her supervision by the representative or the reliability of the filing procedure as described. However, in view of the following, the question of whe­ther the secretary's mistake can be excused need not be decided in the present case.

6. The representative argued that, according to the de­scribed procedure, she clicks through every page of the docu­ments to be transmitted before she electronically signs them (see point VII c) above, step iii)). This corres­pon­ded to leafing through a paper submission page by page before signing it by hand.

6.1 The board agrees that this is a reasonable way of checking whether the representative is signing the right documents. More than that, the board considers that it is the representative's responsibility and ob­li­gation to make sure that what is signed is precise­ly what is meant to be signed.

6.2 The representative argued that she failed to spot the incompleteness in the documents she signed despite exer­cising all due care as required by the circum­stan­ces. The representative thus effectively asked the board, by way of re-establishment, to excuse the re­presentative's mistake of signing the wrong documents.

6.3 The representative referred to T 1095/06 in order to support her case. This decision dealt with the question of whe­ther "re-establishment may be possible even in the event of a culpable error on the part of the assis­tant, if the professional representative is able to show that he has chosen for the work a suitable person properly instructed in the tasks to be performed, and that he has exercised reasonable supervision over the work" so that the error can be considered "an isolated error in an otherwise satisfactory system" (see T 1095/06, reasons 5). The decision stated (reasons 6) that the pertinent jurisprudence could not "be extended to everything that can be described as an 'isolated mis­take'" and that, specifically, this jurisprudence could not "be relied on to ignore a failure to act by the professional representative himself, unless there are special circumstances which make the failure to act compatible with taking all due care."

6.4 The board notes that the representative's error is substantially inde­pen­dent of the specific procedure in place for elec­tro­nic filing, since it would arise in the same way if the representative worked on her own and without the support of a secretary.

6.5 The board need not decide whether the representative's mistake in question is in principle compatible with all due care. It notes however, that the signing of docu­ments is an act that requires particular care on the representative's part, especially when the signature relates to the last legal remedy against an adverse de­cision as is, in the present case, the appeal against the decision by the examining division to refuse the application. The board therefore considers that signing the wrong documents is incompatible with all due care unless special circumstances are in­voked which could justify the representative's mistake in a particular case, thus following the cited reasons of T 1095/06.

6.6 In the absence of such special circumstances the board comes to the conclusion that the representative did not take all due care required by the circumstances in the process of filing the grounds of appeal. The request for re-establishment in the time limit for filing the statement of grounds of appeal is therefore to be refused.

The admissibility of the appeal

7. According to Rule 99(2) EPC, the appellant, in the statement of grounds of appeal, shall in particular indicate the reasons for setting aside the decision impugned, or the extent to which it is to be amended (emphasis by the board).

7.1 The letter of 11 April 2014 contained no reasoning as to the substantive merits of the amended claims. The grounds of appeal do not specify whether the decision is challenged nor, if so, to what extent and why. They also fail to specify whether the amendments made to the claims are meant to overcome the reasons given in the decision or, if they do, why they are deemed sufficient in this respect.

7.2 This assessment, communicated to the appellant with the summons to oral proceedings, was not challenged by the appellant either in writing or orally.

7.3 Therefore, the board concludes that, due to the absence of any reasons, the letter filed on 11 April 2014 does not satisfy the requirements of Rule 99(2) EPC regar­ding the grounds of appeal so that the appeal has to be rejected as inadmissible.

Order

For these reasons it is decided that:

1. The request for re-establishment of rights is refused.

2. The appeal is rejected as inadmissible.

This decision has European Case Law Identifier: ECLI:EP:BA:2014:T110114.20141212. The whole decision can be found here. The file wrapper can be found here. Photo "Signature" by Sébastien Wiertz obtained via Flickr under CC BY 2.0 license.

Friday, June 06, 2014 T 620/13 - Notice of appeal implicit or inferrable?

Photo by Pete as obtained from Flickr.

The present decision concerns the admissibility of an appeal against the decision of the Opposition Division.

According to R.99(1) EPC, the notice of appeal shall contain:
(a) the name and the address of the appellant (...);
(b) an indication of the decision impugned; and
(c) a request defining the subject of the appeal.

According to R. 101(1) EPC, if the appeal does not comply with (...) Rule 99 1(b) or (c), the Board of Appeal shall reject it as inadmissible, unless any deficiency has been remedied before the relevant period under Article 108 has expired.

R. 101(2) EPC provides a potential fail-safe, in that if the Board of Appeal notes that the appeal does not comply with Rule 99, paragraph 1(a) [emphasis added], it shall communicate this to the appellant and shall invite him to remedy the deficiencies noted within a period to be specified.

In the present case, the appellant attempted to file the notice of appeal using EPO's online filing software, which resulted in an attachment of a Spanish language printout of an online bank transfer order with the handwritten addition: "011 - Fee for appeal E08021319.2" and further the name of the patent proprietor, also legibly handwritten.

The Board rejected the appeal as inadmissible since the requirements of Rule 99(1)(b) and (c) EPC are not met, despite the appellant arguing that the appeal could not be rejected as inadmissible before the appellant was given a chance to correct the deficiencies under Rule 101(2) EPC, and (in a later communication) that the decision impugned had been implicitly identified and that the subject of the appeal could be be implied from the overall intention of the appellant.

Summary of Facts and Submissions

II. The representative of the opponent, now appellant, filed a document by means of the electronic filing facilities of the EPO on 13 February 2013. The transmission of the document resulted in the generation of another document by the EPO's online filing software, entitled "Letter accompanying subsequently filed items" in the electronic file (the "PHOENIX electronic file system") of the EPO and referred to hereafter as the Appeal Letter. Under the heading : "The document(s) listed below is (are) subsequently filed documents pertaining to the following application:" it indicated the application number and the applicant's reference identified in the appropriate boxes followed by a table listing attached files, fee payments and mode of payment as well as identifying any attachments. In the case at hand the attachment was identified as "Notice of Appeal" with the original file name recorded as "INGRESO TRANSFER E08021319.2 APPEAL.pdf", assigned the assigned file name "APPEAL.pdf". The attachment was a document in pdf format which, on the face of it, is a Spanish language printout of an online bank transfer order, for the amount of 1240 EUR, with the following handwritten addition: "011 - Fee for appeal E08021319.2" and further the name of the patent proprietor, also legibly handwritten. The generated Appeal Letter further referred to the appeal fee and its amount, as well as mode of payment by transfer to a Spanish bank account of the EPO. The Appeal Letter further included the name of the representative and his address, and data of the electronic signature of the representative.

The appeal fee was paid with an effective date of 13 February 2013.

III. The Registrar of the Board sent a standard communication (EPO Form 3204) to the appellant with a posting date of 15 March 2013, indicating the commencement of proceedings before the Board. This communication contained the following: "The letter dated 13.02.2013 filed by the opponent against the decision of the European Patent Office of 13.12.12 has been referred to Board of Appeal 3.2.04.".

IV. A statement of grounds of appeal dated 15 April 2013 were filed online on the same day, followed by a confirmation copy including copies of cited prior art and received on 22 April 2013. The patent proprietor, now respondent filed a substantive response to the issues raised in the grounds by letter dated 12 August 2013, also filed online.

V. A communication of the Board under Rule 100(2) EPC was issued on 27 September 2013. The Board pointed out that no document was apparent in the file which could be considered as a notice of appeal, and that the particulars of the appeal only became clear from the grounds of appeal. The document filed ostensibly as notice of appeal was in Spanish, without translation, so that it should be deemed not to have been filed. Prima facie it was also not a notice of appeal, but merely a copy of a transfer order. The fee payment could not substitute the notice of appeal, according to settled case law. Therefore, the appeal was expected to be rejected as inadmissible under Rule 101(1) EPC.

VI. The appellant responded to the communication of the Board by a telefax dated and received 4 December 2013, and requested a reconsideration of the finding that the appeal did not comply with Rule 101 EPC. According to the appellant, the Appeal Letter contained all necessary data, such as the representative and his address, patent number, the fact of the fee payment. This document was in English, and clearly expressed the dissatisfaction of the opponent with the appealed decision. The other document was a mere proof of the corresponding fee. The fee payment had to be understood as the intention to appeal the relevant decision under Article 108 and Rule 99(1) EPC. Secondly, the Registry had not complied with Rule 101(2) EPC, in that it did not call the attention of the appellant to the deficiencies in the appeal and did not set a time limit to correct the identified deficiencies. The appellant's attention was first drawn to the problem by the Communication of the Board, and as a reaction to this Communication the appellant submitted with the response a correct Notice of Appeal, pursuant to Rule 101(2) EPC. The appeal could not be rejected as inadmissible before the appellant was given a chance to correct the deficiencies under Rule 101(2) EPC. It was requested to continue the appeal proceedings. The response of the appellant contained in an Annex a Notice of Appeal, dated 4 December 2013 and written in English.

VII. A second communication of the Board under Rule 100(2) EPC was issued on 20 December 2013. The Board commented on the position of the Appellant that the Appeal Letter should be considered as the valid notice of appeal and it indicated that the appeal still appeared to be inadmissible essentially for the reasons set out in this decision, namely that the Appeal Letter does not meet the requirements of Rule 99(1)(b) and (c) EPC.

VIII. The appellant responded to the second communication of the Board by a telefax of 28 February 2014, and argued that the decision impugned must have been implicitly identified in the Appeal Letter as the Registrar was able to deduce from the Appeal Letter the necessary data, as attested by its communication of 15 March 2013 (see point III above). Case Law of the Boards of Appeal support that the subject of the appeal can also be implied from the overall intention of the appellant. Specific reference was made to several decisions of the Boards of Appeal.

Reasons for the Decision

Admissibility of the appeal

(...)

2. The purported notice of appeal - the Appeal Letter - was received in the EPO within the time limit for filing the notice of appeal, and the appeal fee was also paid in time. The fact that the Appeal Letter is a computer generated form is immaterial, as electronic filing is an admissible form of filing documents and the Board is satisfied that it has been signed with an enhanced electronic signature (Article 5(2) and 7(4) of the Decision of the President of the EPO dated 26 February 2009 concerning the electronic filing of documents, OJ EPO 2009, 182, for a more recent publication see: Supplementary publication to OJ EPO 1/2014, 98). As such, it must be taken to have been sent with the knowledge and approval of the party sending it. The crucial issue is whether the Appeal Letter complies with the requirements of Rule 99(1)(b) and (c) EPC for a notice of appeal. As indicated in the communication of the Board (see point VII above) the Appeal Letter does not include anything that the Board may recognize as an indication of the decision impugned or a request defining the subject of the appeal, and thus it does not meet the requirements of Rule 99(1)(b) and (c) EPC.

3. The Board holds that the clear wording of Rule 101(1) EPC leaves no choice but the rejection of the appeal as inadmissible if the requirements of Rule 99(1)(b) and (c) EPC are not met in due time, and the Board has no power to ignore these clear and unambiguous provisions of the EPC. It is also not possible to allow a correction of these formal errors in the notice of appeal by setting a time limit to the appellant once the two month time limit under Article 108 EPC for filing a notice of appeal has expired, as explained below.

4. As to the requirements of Rule 99(1)(b) EPC, the appellant argues that these were fulfilled by the Appeal Letter, as the impugned decision had obviously been properly identified as could be inferred from the Board's communication of 15 March 2013 (see point III above). As to the requirements of Rule 99(1)(c) EPC, the appellant argues that the subject of the appeal could be inferred from the overall circumstances and the apparent intention to appeal.

5. The Board does not accept these arguments. The question is not whether a department of the EPO, such as a Board of Appeal is able to deduce with a relatively high probability that a party intends to appeal a decision and which decision that might be. Rather, as a question of principle, the notice of appeal is a legal declaration or legal statement made by a party to a proceeding before the EPO, and as such it must contain an unambiguous, clear and most of all, explicit statement, which is recognisable as a legal statement, concerning both the identification of the impugned decision and the subject of the appeal (see also J 19/90 of 30 April 1992, point 2.1.3 of the Reasons).

6. As to the required indication of the impugned decision (Rule 99(1)(b) EPC), the Board does not find anything in the Appeal Letter itself which could be considered to be such an indication. It is immaterial that the Registrar was able to establish that a decision was being appealed and on the face of it was able to identify which decision that might be, so that she was also able to issue a communication on EPO Form 3204, informing the parties of the commencement of an appeal and the allocated appeal number. That is the sole, stated purpose of such a communication. In no way does such a communication reflect on whether or not an appeal has been validly filed, i.e. meets all formal requirements for admissibility, or whether or not the appeal is well founded, issues that are only considered and decided once the appeal procedure has commenced. In particular therefore the issuing of the communication on Form 3204 marking commencement of appeal proceedings neither establishes nor confirms that the Appeal Letter actually complied with Rule 99(1)(b) EPC, even if it refers to a (presumably impugned) decision. The Board adds that the date of the last decision is in fact filled in - on the basis of the application or publication number - automatically by the internal software used by the Registrars, among others for the preparation of Form 3204. The date can be overwritten if necessary. Presumably the decision was also "identified" in this manner, after the Registrar noted the appearance of the word "appeal" in the Appeal letter) and proceeded to prepare and send Form 3204.

7. Concerning the required request defining the subject of the appeal, the Board recognises that such a request may indeed be implicit as stated by the Appellant on page 3 of the letter of 28 February 2014 in reference to the "guidelines" in the Case Law of the Boards of Appeal of the EPO (CLBA), 6th Edition 2010. The Board takes this reference to be to Chapter VII.E.7.5.2 (b) of the 6th edition of the CLBA, in particular decision T 358/08, mentioned on page 852 last paragraph, see Catchword and point 5 of the Reasons. In light of the totality of this decision it is clear that T 358/08 was concerned with the question how the required "subject of the appeal" introduced in Rule 99(1)(c) EPC related to the "extent of the appeal" required by corresponding previous Rule 64(b) EPC 1973. Thus, according to the correct reading of that decision by the present Board, what may be "implicit" is that part of the request which indicates whether the decision is to be set aside in whole or only in part. Otherwise decision T 358/08 lends no authority to the argument that there need not be any request at all, a situation which did not occur in that case, see point III of the Summary of Facts and Submissions. Indeed, such an argument would imply that a document clearly identifiable as a Notice of Appeal could actually be dispensed with, which would rather erode the regulatory intent and purpose of Rule 99(1) EPC. Finally, all case law cited by the Appellant regarding implicit requests assumes that the impugned decision is identifiable in a notice of appeal.

(...)

11. To put it simply, if the Board were to accept that the totality of the circumstances on their own, i. e. in the absence of any explicit request or statement to appeal were sufficient, then it would also have to accept that a mere fee payment is also sufficient to find an appeal admissible, contrary to established case law (see CLBA 7th Edition 2013, Chapter IV.E.2.5.4). Obviously, in most cases the mere payment of the appeal fee and its stated purpose as an appeal fee would be perfectly suitable to derive therefrom an intention to appeal. Furthermore, as long as at least an application or publication number is indicated with the payment (as is customary), the presumed decision impugned could also be safely identified in the overwhelming majority of the cases. In this regard, the present Board follows decision J 19/90 (supra), which found that even if the overall content of some documents accompanying the payment include all necessary data and clearly indicate that the purpose of the payment is an appeal (in case J 19/90 the EPO Form 1010 recommended and provided by the EPO was examined in this regard), this cannot substitute a clear and explicit statement or request expressing the will to appeal, see point 2.2.2 of the Reasons.

12. The Board also has no authority to accept the Notice of Appeal subsequently filed 4 December 2013 (see point VI above), as if it had been filed in time. This latter would only have been possible following a request for re-establishment of rights as foreseen by Article 122 EPC.

(...)

14. In the light of the above the Board concludes that the requirements of Rule 99(1) (b) and (c) EPC are not met.

Order

For these reasons it is decided that:

The appeal is rejected as inadmissible.

This decision has European Case Law Identifier: ECLI:EP:BA:2014:T062013.20140522. The whole decision can be found here. The file wrapper can be found here.