T 0071/21 - (No) correction of payment method

Key points

• The decision was published already 14.06.2022.
• The opponent tries to pay the appeal fee with using automatic debiting. However, automatic debiting is not available for opponents; this is expressly excluded in the ADA.
• I guess because the EPO's computer systems are set up to deduct fees from the deposit account associated with the application number, this being the applicant/patentee (the EPO systems seem to use the application number even for granted patents).
• Apparently, Form 1038E permits indicating automatic debiting as the payment method, though the opponent had to identify itself as the applicant.
• The Board in machine translation: " However, the content of Form 1038, which was created electronically on January 11, 2021, nevertheless shows the appellant's order to set up an automatic debiting procedure from the appellant's current account and also states the correct number of the patent in suit under "Applicant's or representative's reference". This initially gives the impression that the EPO's online payment system supports or at least allows the filing of non-system-compliant forms. In fact, however, the form shows that this process, which the online payment system itself does not allow for opponents, could have been brought about by the appellant stating the number of the patent in suit and falsely presenting itself to the system as the "applicant" of the patent in suit."
• The Board rejects the plea based on the protection of legitimate expectations, i.e. the rule that the EPO should warn in case of obvious mistakes if there is still sufficient time for a party to correct them. The Board finds that the error was not evident. " This is because the form does not mention a fee at all, nor has the appeal fee been incorrectly quantified (in fact, none at all), nor has a declaration been made which in its content of the declaration was clearly aimed at debiting an appeal fee from the current account." 
• The Board does not permit a correction under Rule 139 of Form 1038E. " the board comes to the conclusion that a correction of the selected illegal payment method under Rule 139 EPC in the sense of these criteria is not possible in the present case."
  " the appellant's declarations regarding the payment of the appeal fee on Form 1038 (establishment of an automatic debiting procedure) must be checked for a deviation from the underlying true intention regarding the selection of the payment method, and not for a deviation from the general intention of "lodging an effective complaint". "
• " The Board comes to the conclusion that, from an objective point of view, both the notice of appeal and Form 1038, in view of the wording chosen, clearly and unambiguously intend the appellant to pay the appeal fee by means of an automatic debit order or by way of an automatic debit procedure to be paid. The fact that the complainant was not entitled to this debiting procedure as a payment method and that she therefore chose an unsuitable method has no influence on the objectively recognizable clarity of this original intention." .
• As a comment, note that this seems to indicate that a correction of the indication of the payment method is not a priori excluded. 
• Re-establishment is, of course, not available.
• The appeal is dismissed.

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t210071du1.html