Friday, March 30, 2018 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."

Monday, July 06, 2015 T 756/09 - Surprising: an Australian patent attorney was allowed to present the case!?

In first oral proceedings in opposition appeal, the Board had admitted a new line of attack under Article 100(c) EPC into the appeal proceedings, and, after having heard the parties the Board expressed the opinion that the patent could not be maintained as granted because claim 1 violated Article 123(2) EPC. The respondent's representative then declared that he intended to file an auxiliary request. However, this required a prior consultation with the patent proprietor and its Australian representative. The Board informed the parties that, having taken into account the admission of the appellant's new line of attack at a very late stage in the proceedings and the need to give the respondent a fair chance to defend its patent, it was willing to continue in writing and exceptionally conduct second oral proceedings in the present case. Both parties agreed to hold second oral proceedings after the second week of March 2015. 
Only ten days before these second oral proceedings, the respondent informed the Board that Dr. Andrew Morton, an Australian patent attorney would join the respondent's representative in attending the oral proceedings on 18 March 2015. The respondent asked that Dr. Morton be allowed to speak in its name under the supervision of its representative. In support of its request, the respondent essentially submitted that Dr. Morton would not make submissions in the capacity of a technical expert, but as a patent attorney who was very familiar with the case, had advised the professional representative before the oral proceedings and would continue to do so during the oral proceedings. The Board made an -in my view- surprising decision as to this request, which seems to be difficult to reconcile with the criteria formulated by the Enlarged Board of Appeal in G 4/95, r. 10, last sentence & hn. II-b-iii and r.13 & hn.II-c.