20 Nov 2017

T 0395/16 - Appeal and deemed withdrawn application

Key points

  • In this examination appeal, the applicant requested a reimbursement of the appeal fee. During the appeal period, the application became deemed withdrawn due to failure to pay the renewal fee. Does the Board needs to decide on the request for reimbursement of the appeal fee?
  • The Board finds that it does need to decide based on G 8/91. 
  • The alleged procedural violation was that a decision was taken at the oral proceedings that the professional representative could not attend because " the lack of instructions from its client [the applicant] due to serious and unexpected health problems experienced by the [CEO] of the applicant during the period between the deadline for filing the written submissions and the oral proceedings" 
  • The Board finds that "the examining division had no reason not to proceed in its absence and no substantial procedural violation was committed". The Board also recalls that " [where] oral proceedings are held the decision taken orally becomes effective by virtue of its announcement and cannot be amended even by the department that issued it" .



EPO T 0395/16 - link

Reasons for the Decision
1. The appeal is admissible.
2. As announced with email dated 25 July 2017 the appellant did not attend the oral proceedings. In accordance with Rule 115(2) EPC and Article 15(3) RPBA, the proceedings were continued in its absence.
3. According to Rule 103(1) (a) EPC, the appeal fee is reimbursed when a board deems an appeal to be allowable, if such reimbursement is equitable by reason of a substantial procedural violation.
3.1 A review of the decision under appeal, as to its merits, is no longer possible as the European patent application no. 07710600.3 was deemed to be withdrawn under Article 86(1) EPC and hence the appeal to this respect is not allowable.


Therefore, solely for the lack of allowability of the appeal, reimbursement of the appeal fee is not justified. However, the board can also not see a substantial procedural violation by the examining division, as will be explained below.
3.2 As the appellant requested reimbursement of the appeal fee based on an alleged substantial procedural violation on behalf of the examining division, the board considered this request for reimbursement to be a procedural issue in respect of which the appeal procedure is to be continued, and the appeal proceedings cannot be closed without a decision (see case law of the Boards of Appeal G 8/91 points 3 and 5; T 212/08, points 2 and 3; T1493/13, point 1; T 86/10, points 1.1 and 1.2; T 243/09 point 9).
4. As oral proceedings before the examining division were held on 2 July 2015, by not attending the appellant effectively chose not to avail itself of the opportunity to present its arguments orally but instead to rely on its written submissions (Art. 15(3) RPBA; see also J 15/10; T 1625/06; T 628/07; T 55/91).
Therefore the examining division had no reason not to proceed in its absence and no substantial procedural violation was committed. Same holds true for announcing, after deliberation, its decision.
5. Regarding the requests set out in its letter of 7 July 2015 that the examining division should have set aside its "oral pronouncement", not proceed with drawing up a written decision and allow further oral proceedings, the board disagrees with the appellant.
According to the case law of the Boards of Appeal an examining division is bound by its final decision on an application, which can in the present case be set aside only following an admissible and allowable appeal.
6. The board sees no discretion that the examining division could have exercised in favour of the appellant's request and failed to do so.
Where oral proceedings are held the decision taken orally becomes effective by virtue of its announcement and cannot be amended even by the department that issued it (G 12/91, OJ EPO 1994, 285, point 2; R 5/08, point 11 and 21; T 1093/05, point 6; T 361/08, point 11). The board also disagrees with the appellant when arguing that according to "paragraph 3" in G 12/91 there is a discretion for the examining division, because the debate can be reopened only before a final decision is taken.
7. Regarding the decisions of the English courts referred to by the appellant the board notes that every decision depends upon its own particular circumstances and these decisions dealt with specific issues, i.e. a child care family case and an application for summary judgement respectively and they cannot be seen that they show the principles of procedural law generally recognised in the UK as a contracting state to the EPC.
8. In view of the above the board does not consider an absence of procedural provisions in the European Patent Convention which might have necessitated applying Article 125 EPC and accordingly taking into account, in the present case, the principles of procedural law generally recognised in the contracting states (R 4/15).
9. For the reasons as stated supra the Board finds therefore that neither the appellant's right to be heard (Article 113 EPC) nor its right to oral proceedings (Article 116 EPC) had been infringed by the examining decision.
10. As no substantial procedural violation had occurred during the first instance proceedings a reimbursement of the appeal fee on the ground of a substantial procedural violation is not justified.
Order
For these reasons it is decided that:
The request for reimbursement of the appeal fee is refused.

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