T 0198/16 - Yea or Nay to Intention to Pay?
Is the mere intention of an appellant to pay the appeal fee, as expressed by reference to EPO Form 1010 ("Payment of fees and expenses") in the Notice of Appeal, enough to authorise the EPO to debit appellant's deposit account (holding sufficient funds), when said Form 1010 has erroneously not been sent together with the Notice?
In this examination appeal, the Board held - deviating from T 1265/10 - that regardless of whether or not the EPO would have access to sufficient the funds of the party intending to pay, such an intention can never be considered equivalent to an order.
Referring to R 18/13, the Board further found that - different from a mistake made by an assistant - the mistake made by the representative to not explicitly instruct his assistant to pay the appeal fee and to not properly review the electronic receipt is a mistake that cannot be excused. Accordingly, the request for re-establishment of rights was refused.
As a result, the appeal was deemed not to have been filed.
Catchword:
1. The intention to
authorise debiting of the deposit account does NOT already allow the EPO to act
on such authorisation and carry out such intent where the EPO, under the
deposit account system, already holds such money in trust (deviation in particular
from T 1265/10, at point 15), (see point 3.4.3 of the quotation from the
summons under point 1 of the Reasons).
2. A representative must
give express and clear instructions to an assistant to the effect that the
appeal fee has to be paid. It is not enough to rely on the assistant's deducing
the duty to file the payment form from the notice of appeal, which includes the
sentence: "The appeal fee is paid via the enclosed EPO form 1010."
SHARE:
