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)?  

Monday, January 09, 2017 T 2561/11 - Information is not explicitly mentioned, but implicitly present

"Invisible Ink"

In this opposition appeal, according to appellant 2 (proprietor), there were quite a lot of things erroneous with the notice of appeal of appellant 1 (opponent), such as: no name of the appellant mentioned, no correct indication of the decision impugned, and it should lack a clear request defining the subject of the appeal. The Board examined this and tried, for example, to understand who the appellant 1 was although this was not explicitly mentioned in the received notice of opposition. The Board also discussed Rule 99(1)(c) EPC comprehensively and concluded, also based on other case law, that a lacking definition of the subject of appeal must be understood as "request that the decision be set aside in its entirety".