T 0590/18 - Form 1010: so long, farewell, aufwiedersehen, goodbye
The appellant (opponent) in this case wished to file an appeal against an interlocutory decision of the OD. The notice of appeal was filed in Feb. 2018, one day before expiry of the 2m period of Art. 108, together with Form 1010 and a written instruction to deduct the appeal fee from the holder's deposit account. Approximately one week later, the appellant was informed in a letter from the OD that the debit order had not been executed because as from 1/12/2017 the EPO only accepts orders in electronically processable format. The appeal fee was therefore not paid in time and the Board regarded the information letter from the OD as equivalent to an R.112(1) loss of rights communication.
The appellant contested the OD's finding, arguing that although he was perfectly aware of the new arrangements for payments, technical difficulties had made it impossible to submit the debit order electronically. There was also no time to use any of the other accepted payment methods. Credit card payments require that the card is pre-registered with the EPO and bank transfer was not possible because there is insufficient space in the payment header to enter all the necessary information. As a last resort, the appellant downloaded Form 1010, which he obtained from the EPO's website page on the "Euro-PCT Guide".
The appellant argued that because Form 1010 could still be obtained via an official EPO source until 15 March, this implied that it remained a valid means of payment, allowing the appellant to rely on the accuracy of the information. On the date of submitting the debit order, the appellant's account held sufficient funds and he requested that payment of the appeal fee should be deemed on time. The appellant additionally argued that the Decision of the President (to no longer accept debit orders on paper) was unallowable, on the basis that it constituted a factual shortening of the appeal period in the event of technical problems, which decision could only be taken by a 2/3 majority of the Administrative Council. The appellant further asked that a number of questions be referred to the Enlarged Board.
The Board upheld the finding of the OD. They deemed it unjustifiable to place reliance on a document obtained via the online "Euro-PCT Guide" as this is by its nature a brochure which is not necessarily up-to-date. The Board further commented that the appellant could have made further electronic payment attempts on the next day, after the first attempt at online payment failed.
Furthermore, the Decision of the President was held to be valid. The Board disagreed that any factual shortening of the appeal period was concerned. Moreover, the manner in which fees may be paid to the EPO is governed by Art. 5 Rfees. Paragraph (1) provides for payment or transfer into the EPO's bank account. Paragraph (2) stipulates that the President may authorize other means of payment. The possibility of filing the appeal fee via debit order is thus an additional form of payment not necessarily required under the EPC, which the President is entitled to allow, disallow or, in the present case, modify so as to prescribe that only debit orders transmitted in a particular format are recognized.
The Board saw no need to refer any questions to the Enlarged Board.
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