T 0224/22 - Deciding on the admissibility of the lower ranking requests; obiter findings

Key points

• "The appeals by the patent proprietor (appellant 1) and opponent 2 (appellant 2) lie from the opposition division's interlocutory decision to maintain the patent in amended form on the basis of auxiliary request 1."
•  "During the opposition proceedings, the patent proprietor filed 44 auxiliary requests after the negative opinion of the opposition division and before the final date according to Rule 116(1) EPC. They were admitted into the proceedings by the opposition division. "
• Question: how, then, can the OD decide on the admissibility of the lower-ranking requests, i.e. the requests ranking lower than AR-1 that was held allowable by the OD? 
• "The present board cannot agree that the opposition division exercised their discretion in an unreasonable way or based on the wrong criteria. They considered that the requests were a serious attempt to address objections raised by the opponents. They also considered the time of filing appropriate in view of their negative opinion. These criteria are appropriate criteria to rely on when deciding on the admission of late requests."
• "According to established case law, the boards do not have the power to disregard on appeal submissions correctly admitted by the opposition division in exercise of their discretion (Case Law of the Boards of Appeal of the EPO, 10th edition, 2022, V.A.3.4.4). Therefore, the auxiliary requests are part of the appeal proceedings."
• I have some doubts if AR-2, which was not considered in substance (on the merits) by the OD is a request "on which the decision under appeal was based" in the sense of Art. 12(2) and (4) RPBA.
• I think the case law only applies to requests that were admitted and considered on the merits, but I've not double-checked this. 
  
  
• "The subject-matter of claim 1 of auxiliary request 1 thus does not involve an inventive step (Article 56 EPC)."
• "No objection against auxiliary request 2 was raised in due time."
• The patent is to be maintained on the basis of AR-2.
  
  
• Compare T 1614/21: "The Board agrees with the respondent that the statement at the end of sheet 11 of the grounds for the decision under appeal, i.e. the passage in which auxiliary requests 2*, 3* and 4* are referred to as "late-filed" and "considered as not admissible", is an obiter dictum (auxiliary request 1 having been considered allowable by the opposition division). Regarding the right to be heard, this statement is problematic as the admittance of these requests was "not discussed" with the parties "during the oral proceedings" (decision under appeal, sheet 11) or in writing. "
• See also T 0948/19, where the Board wishes to have more obiter* findings of the OD: "In this context, the following should be noted: In a last-instance decision, when a request is not allowed on other grounds it is normally superfluous to address further objections raised against that same request that were found unconvincing after having been discussed at oral proceedings. However, the situation is different for a decision of an opposition division, which may be the subject of an appeal. In this case, if the Board is not convinced by the reasons the opposition division gave in support of precluding the maintenance of the patent on the basis of a certain request, the lack of a decision to review in respect of the aforementioned further objections may result in a remittal for the consideration of said further objections, resulting in a delay in the proceedings."
• * - I understand the part in italics to relate to "further objections raised against that same request that were found unconvincing [by the OD] after having been discussed at oral proceedings". 

EPO 

The link to the decision can be found after the jump.

T 0957/22 - An exception to the exceptions to the prohibition of reformatio in peius

Key points

•  "In decision G 1/99 (OJ 2001, 382, headnote), the Enlarged Board of Appeal formulated an exception to the prohibition of reformatio in peius, namely "in order to meet an objection put forward by the opponent/appellant or the Board during the appeal proceedings, in circumstances where the patent as maintained in amended form would otherwise have to be revoked as a direct consequence of an inadmissible amendment held allowable by the opposition division in its interlocutory decision".
•  The Board, obiter it seems: "The board however agrees with the opponent that this exception does not apply in the case at hand, because the proprietor deliberately withdrew its appeal, and thus waived the possibility of defending its patent in a broader version than that upheld by the opposition division, although it was aware that the board had endorsed in its preliminary opinion the objection under Article 123(2) EPC against the first auxiliary request. In this situation, there is no justification to grant the proprietor back this possibility for reasons of equity, i.e. to establish an exception from the prohibition of reformatio in peius. A party who waives an existing right in full knowledge of the legal situation cannot expect to be granted back this right for reasons of equity."
• G1/99 uses the term '(in)equitable': "if during the appeal proceedings a request is filed by the patent proprietor/respondent in order to meet an objection raised by the opponent/appellant or by the Board to the effect that an amendment introduced in opposition proceedings and held allowable by the Opposition Division does not comply with the requirements of the EPC, and [which objection ] would have the direct consequence that the patent would have to be revoked, then for the reasons given supra in point 13, it would be inequitable for the patent proprietor not to be given a fair opportunity to mitigate the consequences of errors of judgement made by the Opposition Division. Therefore, the patent proprietor may be allowed to file requests in order to overcome this deficiency."
• The point about the proprietor forfeiting its (equitable) rights as a respondent under G1/99 by withdrawing the appeal could be novel. I'm not sure if it is very helpful under the RPBA: an amendment under G 1/99 in reply to an objection in the Statement of grounds of the opponent will have to be made in the reply of the proprietor as a respondent. 
• "Moreover, even if the principles as set out in decision G 1/99 were to be applied to the case at hand, i.e. if the proprietor could benefit from an exception to the principle of reformatio in peius, the decision of the Enlarged Board stipulates that such an exception can only be made if the objection cannot be overcome by two other forms of amendments set out in the headnote of decision G 1/99. However, the proprietor has not argued, nor is it discernible for the board, that claim amendments of these types were not possible."
• G1/99: "In such circumstances, in order to overcome the deficiency, the patent proprietor/respondent may be allowed to file requests, as follows:

  - in the first place, for an amendment introducing one or more originally disclosed features which limit the scope of the patent as maintained;

  - if such a limitation is not possible, for an amendment introducing one or more originally disclosed features which extend the scope of the patent as maintained, but within the limits of Article 123(3) EPC;"

• I should probably admit here that I don't understand the second bullet. Amendments under the first bullet of course do not need to invoke the exception to the prohibition of reformatio in peius. They simply restrict the claims further in appeal. Incidentally, the prescribed order can result in rather strange oral proceedings where the opponent identifies claim amendments that, according to the opponent, are allowable (address an intermediate generalisation in the patent as maintained by the OD, e.g by limiting to the specific embodiment of the drawing or example), and the proprietor argues that they are not allowable (I saw that once). 

EPO 

The link to the decision and an extract of it can be found after the jump.

T 1952/21 - Is AI / machine learning as such technical?

Key points

• Inventive step is at issue for a claim directed to a "machine learning system" comprising generic hardware and some sotware.
• The Board: "The application relates to reinforcement learning. In reinforcement learning, an agent explores the environment according to a policy, determining which action the agent takes (e.g. move right) at every juncture as a function of its current state (e.g. its position in the environment). The agent receives rewards, positive or negative. In this way it can "learn" the value of the various actions and states. The goal of training is to maximize a value function which reflects the expected sum of rewards given a certain action. The application builds upon the method of D1, called A3C (asynchronous advantage actor-critic). That method separately approximates the policy and value models as neural networks. The raw input (describing the environment) is preprocessed in sequence by a feed forward network. The result is fed to the value and the policy networks. Developments of that method [i.e. the distinguishing feature of claim 1, as I understand it], termed NoisyNet A3C in the current application, inject randomness into the training by using stochastic weights (e.g. by adding random noise or using stochastic models) in the policy and value networks. This allows for further exploration of the parameter space )." [initernal citations omitted]
• The decision does not seem to explicitly identify the distinguishing features of claim 1 over D1. Claim 1 recites: "wherein said feed-forward neural network comprises stochastic units". This may be the relevant feature.
• The Board extensively summarizes the applicant's arguments, but I'm more interested in the Board's reasoning.
• The Board: "The Board remarks that pseudorandom number generators were known to the person skilled in the art. Their use, in general or in the more specific context of "stochastic units" [] does not change in substance the computer, which remains as "deterministic" as any conventional computer. So the Board cannot see a contribution on this level."
• I'm not sure if "well known" and "non-technical" are the same under the EPO approach to inventive step (cf. the US approach in Alice, 573 U.S. 208)
  
• "The system for reinforcement learning as claimed is a neural network, comprising various sub-networks, implemented on a computer. The network, as a whole, defines a mathematical function mapping inputs into outputs. Effectively, the claim is to a mathematical method implemented on a computer."
• I guess this observation is true for any type of software?
• "the Board holds that the Enlarged Board decision G 1/19, addressing the patentability of computer-implemented mathematical models for simulation, should be the starting point when assessing the technical character of reinforcement learning. It is commonly accepted that a large part of the findings in G 1/19 apply to any computer implemented inventions.
• " In G 1/19, the Enlarged Board of Appeal stated (reasons 137) that (simulation) models by themselves are not technical but that "they may contribute to technicality if, for example, they are a reason for adapting the computer or its functioning, or if they form the basis for a further technical use of the outcomes of the simulation". However, "such further use has to be at least implicitly specified in the claim"."
• The Board finds there is no implicit further technical use in the case at hand.
• " The Board has already explained above that the functioning of the computer, or the computer itself, are not adapted. "
• Regrettably, I can't find the 'above' quickly.
• "This conclusion is consistent with that in the case T 702/20, which is in many ways similar to the present one, where this Board (in a different composition) decided, also following G 1/19, that a trained machine learning model, namely a neural network, can "only be considered for the assessment of inventive step when used to solve a technical problem, e.g. when trained with specific data for a specific technical task" []."
• "The Appellant also argued that reinforcement learning was technical based on an analogy with the case law regarding cryptography, in particular RSA [T 1326/06]
• From that case: "Nach Meinung der Kammer handelt es sich beim sicheren Austausch von elektronischen Nachrichten um eine technische Wirkung, die zu erzielen als eine technische Aufgabe angesehen werden muss. RSA löst diese Aufgabe mit mathematischen Mitteln. Mit RSA gelang ein Durchbruch in der Entwicklung der Kryptografie: RSA wird als das erste praktikable, konkret implementierbare asymmetrische Kryptosystem angesehen und ist heute in zahlreichen kryptografischen Sicherheitssystemen eine zentrale Komponente. Die RSA zugrundeliegende Mathematik dient somit unmittelbar der Lösung eines konkreten technischen Problems."
•  "The Board notes that [...] RSA and reinforcement learning are different and serve different purposes. In particular, RSA and other cryptographic methods have a specific, and at least implied, purpose, namely data security. This is not the case for reinforcement learning. So the findings regarding RSA cannot directly be transferred to reinforcement learning."
• This raises the question: why is 'data security' technical and 'machine learning' not?
• To me, as a simple chemist, ChatGPT feels just like database management technology, turbo code interleavers for wireless communication, and copy/paste (clipboard) on the computer: I have (basically) no idea how it works, but it definitely makes my computer more useful, even though they are perhaps not all prize-winning.
• Whether introducing randomness for "further exploration of the parameter space " in the given context is obvious or not, I don't know. 
• "The Board accepts that the use of the term technical in the case law of the Boards of Appeal may differ from its use elsewhere in society, especially from its colloquial use. However, this does not mean that the Boards of Appeal interpret the law incorrectly: it is common place that the legal interpretation of a term may differ from its colloquial meaning. In particular, the Boards use the term "non-technical" to denote matter excluded under Article 52(2) and (3) EPC. Any alternative interpretation of the terms "technical" and "non-technical" can only be used to justify the patentability of subject-matter to the extent that it does not contradict the law, in particular the exclusion of mathematical methods."

The link to the decision and an extract of it can be found after the jump.

J 0011/20 - Correcting the drawings effectively in appeal

Key points

• An application is refused on 17.01.2020 under Art. 90(5) for failure to correct drawings in due time (more details below).
• "as clarified in decision J 18/08 (Reasons 4 and 6), when an application is refused under Article 90(5) EPC, if an appeal is filed against such a refusal, the board of appeal has to examine whether the deficiency noted has been corrected or not. Thus the deficiency on which the decision under Article 90(5) EPC is based can be corrected at the appeal stage."
• J 18/08, issued in 2009, concerned the failure to appoint a professional representative where required. The Board allowed the applicant to repair that deficiency in appeal.
• In the case at hand, the deficiency had been remedied already (the correct drawings were filed). In fact, the Receiving Section had informed the applicant in August 2019 that the correct drawings had been filed late (namely after the period set in the communication informing the applicant about the deficiency). Then, in October, there was a phone call and a request for re-establishment, followed by the Receiving Section issuing in January 2020 a decision refusing the application. The Board concludes that the decision must be 'reversed'. 
• The Board expresses surprise at the Receiving Section not granting interlocutory revision. "The practice of the Receiving Section, based on this procedure and following the cited case law, has been to rectify its decision refusing an application under Article 90(5) EPC, if an appeal is filed and the deficiency is remedied at the appeal instance and to forward the appeal to the boards of appeal as far as the request for reimbursement of the appeal fee is concerned (see also Neumann in Singer, Stauder, Luginb hl, EP , 9th edition 2023, Art. 90, note 59, as well as Ehlers in Benkard, EP , 4th edition 2023, Art. 90, note 130)."
• I don't know what is going on with the Ü.
• In view of the rather strange chronology (deficiency remedied before the filing of the appeal) and the request for re-establishment made before the refusal decision (and again with the appeal), I can see some reasons for not granting interlocutory revision. 
• The Board sees a substantial procedural violation, in that the Receiving Section did not decide at all on the request for re-establishment and in that the Receiving Section had not commented on the argument of the applicant, already presented then, that it had not received the Communication setting the time limit.
• " although the appellant had contested the receipt of the Communication on 24 October 2019 in a timely and formal manner (see point X. above), the Receiving Section made no attempt to initiate a postal investigation, as prescribed by Rule 126(2) EPC. Such investigation would still have been possible at that time, since 7 months had passed from the notification of the Communication (14 March 2019)."
• This pertains to Rule 125(4) EPC. I believe that there is a one year period is for postal investigations for the delivery of registered letters under the Universal Postal Convention.
• "Since the appeal is allowed and the appeal fee to be reimbursed, the request for re-establishment of rights is without object and there is no need to remit the case to the first instance for a decision on it. It also follows that the fees paid twice for the requests for re-establishment of rights were paid without a legal basis and are to be reimbursed."
•  Remarkably, the application was published in September 2020, well after 18 months from the priority date (in November 2017) and somewhere during the course of the appeal. 

The issue with the drawings and Rule 137(1)

• The drawings as filed contained in Fig. 5 some blurry text and, legibly, the words "thermocouple" and gas valve.
• In invitation to correct was sent in December 2018.
• A corrected Figure 5 was filed in February 2018, with legible text, but with the original legible words omitted.
• A communication was issued in March 2019 stating in the first sentence that the amended document was not in agreement with the application document as originally filed.
• This is strange, as simply deleting labels in a figure can hardly violate Article 123(2).
• However, the second sentence states that before receipt of the search report, the drawings may only be amended to the extent sufficient to remedy the deficiencies noted by the Receiving Section.  
• The Board: "as can be seen from the reference to Rules 137(1) and 58 EPC in the Communication, the Receiving Section raised an objection under these provision".

Ex nunc examination only in appeal

• "The deficiency having been remedied late and no means of redress having been filed, the Receiving Section was empowered to issue the refusal decision at expiry of the time limit given under Rule 58 EPC (see in particular J 1/18, Reasons 5)."
• It seems the appeal against a decision under Article 90(5) functions like an expensive kind of further processing. Re-establishment is the cheaper remedy but is less certain. 

EPO 

The link to the decision and an extract of it can be found after the jump.

T 1354/23 - Crystalline form

Key points

• Claim 1 is directed to a crystalline form of a medical compound, apalutamide.
• Inventive step is at issue. "In experimental report D3, appellant I [opponent I] reworked the preparation of apalutamide according to D1 and obtained a solid which when analysed by XRPD was revealed as amorphous. Since this conclusion was not disputed by the respondents, it is accepted in the following that apalutamide prepared according to D1 is amorphous."
• Patent document D2 discloses the preparation of apalutamide and its recrystallisation from DCM/EtOH (paragraph [0091]). There is no information in D2 nor has any evidence been provided by any of the parties as to the specific form of the crystalline material prepared according to D2."
• "Claim 1 of the main request is therefore distinguished from both D1 and D2 in that a specific crystalline form of apalutamide denoted Form B is provided, while D1 discloses the amorphous form and D2 discloses an undefined crystalline form.
• "The respondents [proprietors] , relying on evidence in the patent as well as D19, argued that a technical effect of Form B was that it was less hygroscopic than the amorphous form of D1 and the other forms disclosed in the patent.
• "D19 also indicates that another crystalline form, namely Form A is significantly more hygroscopic, demonstrating a weight change of about 1.8% (D19, figure 1). "
• "On the contrary, as argued by the respondent, in relation to hygroscopicity, example 7 of the patent indicates that Forms C, D and J are "slightly hygroscopic" according to the definition provided in D18, addressed above, in contrast to Form B, which was demonstrated as negligibly hygroscopic. Since as set out above D19 also demonstrates that Form A is more hygroscopic than Form B, in the absence of any evidence to the contrary, it can be accepted that Form B is less hygroscopic than the other forms disclosed in the patent. "
• In the PCT application, forms C, D and J are solvates. The PCT application mentions an unsolvated form, form H.
•  The comparison of form H and form B using the data in the patent was not admitted into the proceedings under Art. 13(2) RPBA - the Board considered it a new 'fact' in the sense of T1914/12. 
• "Appellant II [opponent] argued that no improvement in hygroscopicity was demonstrated in relation to other polymorphic forms, in particular the undefined form of D2. The board disagrees. As argued by the respondents, the disclosure of D2 in relation to the crystalline form obtained is vague: the only information provided in paragraph [0091] thereof is that the obtained solid was recrystallised from DCM/EtOH. However, insufficient information is provided to reproduce the recrystallised product, such as relative amounts of the solvents mentioned, order of addition, addition rate, etc. As stated by the respondents, the information in the patent in combination with D19 is sufficient to render credible the effect that Form B is negligibly hygroscopic. The burden of proof in demonstrating a equally low hygroscopicity for other crystalline forms or the undefined form of D2 therefore lies with the appellants [opponents]."
• This touches on G 1/23: what about non-enabled prior art?
• See also G 2/21 r.26: " According to the established case law of the boards of appeal (see CLB, 10th edition, I.D.4.2, and the decisions therein) it rests with the patent applicant or proprietor to properly demonstrate that the purported advantages of the claimed invention have successfully been achieved.". The Enlarged Board here did not say that the proprietor has the burden of proof to show the improvement, i.e. to rework the prior art. 
• " Consequently, an improvement (i.e. reduction) in hygroscopicity relative to the amorphous form of D1 and the undefined form disclosed in D2 can be relied on in defining the objective technical problem."
• Another approach is that the objective technical problem over D2 is the provision of a 'negligible hygroscopic' form of the compound.
• The Board considers some further evidence on other properties and concludes: " On the basis of the foregoing, the objective technical problem underlying claim 1 starting from either of D1 or D2 is essentially that proposed by the respondents, namely the provision of a form of apalutamide with a beneficial combination of properties, namely improved hygroscopicity, high thermodynamic stability and high polymorphic stability." 

• For obviousness, "This corresponds to the principle set down in landmark decision T 777/08. According to that decision, the technical effects or properties of the claimed polymorph (improved filterability and drying characteristics) were effects which were expected merely by virtue of being crystalline. Hence, since it belonged to the routine tasks of the skilled person involved in the field of drug development to screen for solid-state forms of a drug substance, there was an incentive for the skilled person to arrive at the claimed solution in the expectation of achieving these improved characteristics. The board stated (see headnote 2) that "the arbitrary selection of a specific polymorph from a group of equally suitable candidates cannot be viewed as involving an inventive step." The implication from T 777/08 is therefore that when the advantages or effects of the claimed crystalline form are unexpected, i.e. they are not arbitrary and do not follow merely by virtue of being crystalline, then an inventive step is present.
• "In the present case, there is no absence of unexpected properties, and the selection of Form B is not arbitrary, since Form B possesses a beneficial combination of properties as set out above."

• The question is: the non-arbitrary selection of Form B from what? What are the other members of the class it is selected from?   

• It seems a useful strategy to include a few poor crystalline forms  (solvated or not) in a patent directed to a 'good' polymorph. 

The link to the decision and an extract of it can be found after the jump.

T 0606/22 - Factory visit as (no) public prior use

Key points

• The alleged public prior use is a visit of a person to a plant.
• The Board, in machine translation: "In the present case, all evidence relating to the alleged obvious prior use was within the sphere of influence of the [former] opponent, who relied on a video made during a visit by one of its employees, the witness Mr. Traum, to Sante A. Kowalski Sp.j. The obviousness of the prior use therefore had to be proven without gaps by the opponent"
• The opponent had withdrawn the opposition in appeal before the summons. The proprietor and the opponent had both appealed the decision to maintain the patent in amended form. 
• "The opposition division based its finding on the obviousness of the prior use on the testimony of the witness Mr. Traum. In his testimony, the witness stated that during the visit to the Sante A. Kowalski Sp.j. premises on which the prior use was based, he was under no obligation with regard to what he had seen in the premises (see the minutes of the taking of evidence, page 2, last full paragraph). He further stated that he was not prevented from taking video recordings on the premises. He stated that he could not remember any instructions regarding confidentiality (see ibid., page 5, paragraphs 2 and 3). In addition, the witness stated that he had to sign at the access control to comply with hygiene and safety regulations (see ibid., page 2, paragraph 5)."
• "In its written submission of 3 June 2022, the patent proprietor submitted, through document A38, two versions of a "Guest Statement" from Sante A. Kowalski Sp.j., which are essentially identical with regard to points 3 and 9 on confidentiality, and which it claims had to be signed by every visitor to the premises of Sante A. Kowalski Sp.j. during the relevant period of the alleged prior public use.
• "2.5 Both "Guest Statements" appear to be consistent with the witness's statement regarding the access control in place during his visit to Sante A. Kowalski Sp.j. and the obligation of visitors to sign a declaration.
• 2.6 However, contrary to the vague statement of the witness, document A38 contains explicit provisions on confidentiality and a prohibition on video recordings on the premises without the consent of Sante A. Kowalski Sp.j. 

• "the submission of document A38 raises considerable doubts about the opposition division's finding that Sante A. Kowalski Sp.j. had no interest in confidentiality. Rather, confidentiality for visitors appears to have been standard practice. It is not apparent that an exception was made for certain groups of visitors, such as service technicians. The witness also only mentions access control in general terms.

  2.8 These doubts can no longer be verified in the present proceedings, since further investigations to clarify the facts necessarily require the cooperation of the opponent, given its influence over the evidence, who has, however, withdrawn its opposition. The board therefore concludes that, following the submission of document A38, there are sufficiently justified doubts as to the obviousness of the prior use (see T 1534/16, in particular point 1 of the reasons). "

• The opponent had withdrawn the opposition in 2024.

• The Board considers the public prior use to be not proven. 

• :" In its preliminary opinion of 2 August 2019 and 23 June 2020, the opposition division came to the preliminary view that, with the exception of the asserted obvious prior use, all objections raised up to that point in time were unlikely to be successful under the ground of opposition under Article 100(a) EPC. The novelty objection based on D15 was not admitted into the proceedings due to a lack of prima facie relevance. With regard to the objections newly filed with the written submissions in the appeal proceedings, in particular public prior use IV, the board sees no reason why these should be admitted into the proceedings.

  The Board therefore sees no reason to remit the case to the Opposition Division for continuation of the opposition proceedings under Rule 84(2) EPC.

  4. Accordingly, there are no grounds for opposition under Article 100 EPC which would manifestly preclude the maintenance of the patent in its granted form. "

• The patent is maintained as granted.

EPO 

The link to the decision and an extract of it can be found after the jump.

T 2447/22 - A communication under Rule 103(2) EPC

Key points

•  Rule 103(2) EPC specifies that "The appeal fee shall be reimbursed at 75% if, in response to a communication from the Board of Appeal indicating its intention to start substantive examination of the appeal, the appeal is withdrawn within two months of notification of that communication. ". The Administrative Council introduced this provision in 2020. At that time, there were no such communications. The Administrative Council did not amend the Implementing Regulations to require the Boards to issue such a communication before they start the substantive examination - G 6/95  may have something to do with this.  The RPBA neither contain a provision instructing the Boards to issue such communications, which would be the appropriate place in view of G6/95.  (I'm not sure whether the President of the Boards, Presidium and BOAC considered the introduction of Rule 103(2); the chronology of both rule changes is partly overlapping. I suppose that the whole package of measures regarding the appeal fee of  CA/80/19 was prepared in consultation with the Boards). 
• I don't know if there are any Boards that regularly issue communications under Rule 103(2) or whether this is done regularly in "long-pending appeal cases" (cf. the explanatory notes to Rule 103(2) in CA/80/19, para. 66). 
• The yearly list of cases of the Boards (introduced by the RPBA 2020) is no such communication, though it serves the same purpose to some extent (but is not notified to the parties for reasons so parties need not be aware of it). 
• In this case, the applicant withdrew the appeal before substantive examination of the appeal had begun but without a communication in the sense of Rule 103(2) being issued, requesting the 75% refund, arguing essentially that Rule 103(2) should not be interpreted in a grammatical way only. The Board refuses the 75% refund but gives the 50% refund under Rule 103(3).
• The Board: "The clear and explicit wording of Rule 103(2) EPC precludes the application of this Rule suggested by the appellant based on its alleged ratio legis, as such an application would directly contradict this wording."
• "he clear and explicit wording of Rule 103(2) EPC also rules out the possibility of applying this Rule in a manner analogous to that employed in T 2361/18 for Rule 103(4)(c) EPC. Incidentally, contrary to the appellant's view, the legal situations in T 2361/18 and the present case are different. Unlike Rule 103(2) EPC, Rule 103(4)(c) EPC does not explicitly require that the withdrawal of an appeal be "in response to a communication from the Board of Appeal" (cf. T 2361/18, reasons, point 3.4). "
• "the Board takes from points 66 and 67 of document CA/80/19 (see [the quote of the Board's preliminary opinion given in the  "Summary of Facts and Submissions"]  point 14) that the ratio legis of Rule 103(2) EPC went beyond reducing the appeal backlog by incentivising withdrawals. Additionally, the legislator intended to provide the Boards of Appeal with a tool for steering the timing of appeal withdrawals in order to reduce situations where the withdrawal of an appeal coincided with its examination by the Boards. Furthermore, the legislator's intention was to leave it up to the Boards whether to use this tool - a communication indicating the intention to start substantive examination of the appeal is not mandatory ([the quote of the Board's preliminary opinion given in the  "Summary of Facts and Submissions"], point 16).
• The Board in the preliminary opinion also refers to the Vienna Convention, finding that: " This result of a literal interpretation of Rule 103(2) EPC is confirmed by document CA/80/19, which is a supplementary source pursuant to Article 32 of the Vienna Convention." However, the travaux préparatoires are no supplementary source to the literal interpretation but to the 'holistic' interpretation under Article 31(1) (a "treaty 'shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"). See J5/23.
   
• The applicant could p
• ossibly have asked for a Communication under Rule 103(2) before withdrawing the appeal. The Board would then decide on such a request taking into account the appellant's legitimate interests. 

EPO 

The link to the decision and an extract of it can be found after the jump.