Tuesday, March 01, 2016 T 1402/13 - No 50% reimbursement of the appeal fee

This decision relates to a conditional withdrawal of an appeal and a request for reimbursement of the appeal fee since no preliminary opinion was issued by the board and no date for oral proceedings was set. Problem was however that the applicant (appellant) did not pay the renewal fee that was due earlier (31 August 2015) than the withdrawal of the appeal was submitted (19 February 2016). Interestingly, this decision was published straight away, on 25 February 2016, while the applicant could still pay the renewal fee with a 50% surcharge until 29 February 2016. Of course this would not have been (money-) wise because the return of the appeal fee (1240 euro at the time; 50% being 620 euro) would not outweigh the costs for the renewal fee plus surcharge (2340 euro). To be on the safe side, the board could have waited until after 1 March 2016, but they did not.
The conclusion is that one cannot get a reimbursement of the appeal fee when an application is no longer pending. The appeal procedure in this case has ended due to the loss of rights. The declaration regarding the withdrawal of the appeal cannot be effective.

Summary of Facts and Submissions

I. The appeal lies against the decision of the Examining Division dated 17 December 2012. It was filed on 13 February 2013. A statement of grounds was submitted on 24 April 2013.

II. The renewal fee for the 12**(th) year fell due on 31 August 2015 and was not paid by that date.

III. On 18 February 2016 the Appellant submitted a declaration stating: "The Appellant ... hereby withdraws their Appeal against the decision of the Examining Division upon the condition that the withdrawal is received in time to qualify for at least a 50 % refund of the appeal fee."

IV. The Board has neither issued a preliminary opinion nor set a date for oral proceedings.

Reasons for the Decision

1. Procedural declarations may be made with the proviso that certain conditions are met, as long as a case is already pending (J 16/94, referring to Article 108, first sentence, and Rule 64(b) EPC 1973; T 854/02, Reasons 2.1) and these conditions do not concern facts outside the proceedings (T 502/02, Reasons 1, referring to Articles 21 and 111(1), second sentence, EPC). Thus, whereas a conditional appeal is not possible, the conditional withdrawal of an appeal may be valid (T 6/92, Reasons 2 and 3; T 304/99, Reasons 3.1.).

2. The withdrawal of an appeal can, though, only take effect if the appeal is still pending.

3. This is not the case here. Since the renewal fee for the 12**(th) year was not paid in due time, the application is deemed to be withdrawn in accordance with Article 86(1), 3rd sentence, EPC. Such a loss of rights also affects the appeal proceedings. The fact that the Appellant might still reverse the loss of rights by paying the renewal fee plus an additional fee (50 % of the renewal fee) within 6 months after the due date, does not change the current situation, since no such fees have been received by the Office. Thus, at present the application is no longer pending and hence the appeal proceedings have also ended due to the loss of rights. Therefore, the declaration regarding the withdrawal of the appeal cannot be effective.

4. In consequence, the prerequisites of Rule 103(2) EPC are not met. Thus, no reimbursement of the appeal fee or parts of it is possible for as long as the renewal fee plus the additional fee have not been paid.

Order

For these reasons it is decided that:

The request for a (partial) reimbursement of the appeal fee, dated 18 February 2016, is refused.

This decision has European Case Law Identifier: ECLI:EP:BA:2016:T140213.20160225 and can be found here. The file wrapper can be found here.Photo "Flower" by Jeremy Knight via Flickr under a CC-By license (no changes).

Tuesday, September 30, 2014 D 3/14 - Undo withdrawal of appeal?

This appeal lies from the decision of the Examination Board to award the appellant the grade "fail" in the pre-examination for the European qualifying examination 2014. The Examination Board remitted the appeal to the Disciplinary Board without rectifying its decision. In its statement setting out the grounds of appeal, the appellant stated that "if interlocutory revision is not successful, I request to withdraw my appeal and to have a full refund of the appeal fee." Following the remittance to the Board, the appellant nevertheless inquired whether it was possible to continue her appeal. The Board found the appeal to be pending, set aside the decision under appeal and granted a "pass" grade.

Reasons for the Decision

Pending appeal

1. The appeal lies from decisions of the Examination Board which adversely affect the appellant. A notice of appeal including the statement setting out the grounds of appeal was filed in writing with the Secretariat within one month of the date of notification of the contested decision (pursuant to Article 24(2) and (4) REE together with Articles 21(2) and 24(1) RDR and Rules 126(2), 131(2) and (4) and 134 EPC the time limit expired on 8 May 2014). The fee for appeal was also paid within said time limit. The appeal thus complies with Article 24(2) und (4) REE.

2. In its statement setting out the grounds of appeal, the appellant stated that "if interlocutory revision is not successful, I request to withdraw my appeal and to have a full refund of the appeal fee." With letter of 15 May 2014, the Examination Board remitted the appeal to the present board without rectifying its decision. With email dated 5 June 2014 the appellant nevertheless inquired whether it was possible to continue her appeal and to request accelerated proceedings. It emerges from this statement, which was received before a possible disposal of the appeal was ordered by the appeal board, that the appellant did not wish to be bound by her previous withdrawal. In the appeal board's judgement, this statement amounts to a retraction of the withdrawal. Such a retraction is considered allowable, according to general principles of procedural law in administrative procedures, if withdrawal is to the detriment of the party and if legal certainty is not at stake. In the present case, both conditions are fulfilled.

3. Moreover, the withdrawal was not effective, since it had been made on the condition that the appeal was not allowed within two months of notification of the contested decision. Indeed, according to general principles of procedural law in administrative procedures, the withdrawal of an appeal has to be explicit and unconditional, i.e. it should not depend on any decision to be made or discretion to be exercised by the competent authority. In the present case, the condition made by the appellant for the withdrawal was not fulfilled when the withdrawal was declared but depended on a decision of the Examination Board on whether or not to rectify its decision. Therefore, there was no valid and effective withdrawal.

4. For this reason, the appeal board found the appeal to be pending.


Request that the contested decision be set aside

5.-9. [...]

Request that the contested decision be corrected

10.-19. [...]

20. In view of the above, it is not necessary to hold the oral proceedings which were requested on an auxiliary basis.

ORDER
1. The decision under appeal is set aside.

[...]

This decision has European Case Law Identifier:  ECLI:EP:BA:2014:D000314.20140901. The whole decision can be found here. Photo (no changes made) by Thiago Ogoshi obtained via Flickr, CC-BY-2.0.