Hence, Rfees2(1)1 read until 31 March 2019 as follows (according to OJ 2018 sp2 - see the note below):
Note that for Euro-PCT applications, only Form 1200 is decisive for the level of the filing fee.
(Article 78, paragraph 2) where
| ||
001
(020) |
120
| |
001
(020) |
210
|
New Rfees2(1)1 as of 1 April 2019:
1.[ 3 ] Filing fee | ||
001
(020) |
(i) where the European patent application or, if required, its translation (Article 14, paragraph 2) is filed online in character-coded format, or,
in the case of an international application, if within the 31-month period (Rule 159, paragraph 1) the form for entry into the European phase (EPO Form 1200) and the international application or, if required, its translation (Rule 159, paragraph 1(a)), and any amendments for processing in the European phase (Rule 159, paragraph 1(b)), are all filed online in character-coded format
|
90[ 4 ]
|
001
(020) |
(ii) where all documents referred to in item 1(i) are filed online,[ 5 ] but any one of them is filed in a format other than character-coded format
|
120[ 6 ]
|
001
(020) |
(iii) in all other cases
|
250[ 7 ]
|
[ 3 ] Amended by the decision of the Administrative Council CA/D 17/17 of 13.12.2017 (OJ EPO 2018, A4), entered into force on 01.04.2018. See also decision of the Administrative Council CA/D 11/18 of 12.12.2018 (OJ EPO 2019, A3) in conjunction with the notice from the EPO dated 24.01.2019 concerning the application of these fee levels (OJ EPO 2019, A6).
[ 4 ] Pursuant to Article 2, sentence 1, CA/D 11/18 (OJ EPO 2019, A3), this fee level does not currently apply. It will be applicable from a date to be set by the President of the Office.
[ 5 ] See the decisions of the President of the EPO concerning the electronic filing of documents (OJ EPO 2018, A45 and A93) and the notices from the EPO, (OJ EPO 2018, A46 and A94).
[ 6 ] This fee level applies to all online filings until a date to be set by the President of the Office from which the fee level under (i) will become applicable.
[ 7 ] This fee level applies as of 01.04.2019 to all non-online filings.
The difference is that now, according to the literal text, for the EUR 120 fee rate, " all documents referred to in item 1(i) are filed online".
These documents are, for Euro-PCT applications:
- The form for entry into the European phase (EPO Form 1200)
- the international application or, if required, its translation (Rule 159, paragraph 1(a)),
- and any amendments for processing in the European phase
For PCT applications published (by WIPO) in English, French, or German, no translation needs to be filed upon entry of the European phase (Article 153(4) EPC.
Rfees2(1)1(i) explicitly says that in such a case "international application" needs to be filed.
Filing the PCT application is not a prescribed act under Rule 159(1) EPC (the EPO receives it from the IB under Article 20 PCT, albeit as plain images PDF; in addition, the PCT application is published by WIPO).
So, now for the EUR 120 fee rate, according to the literal text of Rfees as published by EPO in OJ 2019 sp2, the PCT application needs to be filed (or the translation). If neither a translation or the PcT application is filed, the application falls under the "all other cases" of the EUR 250 fee rate.
The explanation of the EPO is:
" 5. Unlike the fee levels listed in point 3 above, which will continue not to apply, the EUR 250 filing fee for non-online filings [Article 2(1), item 1(iii), RFees, i.e. the EUR 250 level.] will start to be applied by the Office as from 1 April 2019. It will apply to payments made on or after 1 April 2019." (OJ 2019 A6).
That does not say anything about a change of the substantive requirements for the EUR 120 fee level.
Most likely, the EPO only wanted to increase the EUR 210 rate to EUR 250. However, the change in the text part of Rfees2(1)1 is there.
Update 02.04.2019: the EPO Customer Service writes that:
" for all applications entering the European phase on line (and not with paper filing) the filing fee amounts to 120EUR."
" 5. Unlike the fee levels listed in point 3 above, which will continue not to apply, the EUR 250 filing fee for non-online filings [Article 2(1), item 1(iii), RFees, i.e. the EUR 250 level.] will start to be applied by the Office as from 1 April 2019. It will apply to payments made on or after 1 April 2019." (OJ 2019 A6).
That does not say anything about a change of the substantive requirements for the EUR 120 fee level.
Most likely, the EPO only wanted to increase the EUR 210 rate to EUR 250. However, the change in the text part of Rfees2(1)1 is there.
Update 02.04.2019: the EPO Customer Service writes that:
" for all applications entering the European phase on line (and not with paper filing) the filing fee amounts to 120EUR."
(I assume that the phrase "all documents referred to in item 1(i) are filed online" in item 1(ii) means the documents identified as relevant in item 1(i), not in the extremely literal but nonsensical way that simply all documents mentioned in item 1(i) must be filed online.)
Note on Rfees2 in OJ 2018 sp2
The interesting thing with the Rfees is that (at least since the previous President), the text of the Rfees as published by the EPO on its website and in the OJ Supplementary Publication is not necessarily the same as the text adopted by the Administrative Council.
For example, OJ 2018 sp2, showed Rfees2(1)1 (filing fee) as if the decision of the Administrative Council CA/D 17/17 of 13.12.2017 (OJ EPO 2018, A4) (about DOCX) had never happened. The argument for doing so was that the EPO president had "decided" to levy only the (lower) old fees (in the notice of OJ EPO 2018, A28 which stated that the "EPO will therefore proceed in accordance with amended Article 2(1), items 1, [...] after 1 April 2018, once the technical means for DOCX filing are available" (meaning that for the time being the EPO simply did not proceed in accordance with amended Article 2(1)1). The EPO then published the Rfees in OJ 2018 sp2 not in the text as decided by the Administrative Council, but in the text according to that Notice OJ EPO 2018, A28. Notices of the EPO have no legal force, and the EPO President can not amend the Rfees - but in the end, it is the EPO President who decides what is published in the OJ. Not the Administrative Council (or the Enlarged Board, by the way). (Admittedly, the argument of the EPO was that publishing the text of the Rfees as adopted by the AC would have been confusing for users).
There is some improvement under the new president because OJ 2019 sp2 shows the EUR 90 fee level with a footnote indicating that the fee level is not applied.
However, it is rather annoying that the text as published on 29 March indicates all kinds of changes, effective as of 1 April, which were up to now not explained or announced by the EPO.
Full disclosure: I edit the chapter on Rfees in Visser's Annotated EPC, however with the exception of Rfees2(1)1 and all other issues relating to DOCX filing.
The interesting thing with the Rfees is that (at least since the previous President), the text of the Rfees as published by the EPO on its website and in the OJ Supplementary Publication is not necessarily the same as the text adopted by the Administrative Council.
For example, OJ 2018 sp2, showed Rfees2(1)1 (filing fee) as if the decision of the Administrative Council CA/D 17/17 of 13.12.2017 (OJ EPO 2018, A4) (about DOCX) had never happened. The argument for doing so was that the EPO president had "decided" to levy only the (lower) old fees (in the notice of OJ EPO 2018, A28 which stated that the "EPO will therefore proceed in accordance with amended Article 2(1), items 1, [...] after 1 April 2018, once the technical means for DOCX filing are available" (meaning that for the time being the EPO simply did not proceed in accordance with amended Article 2(1)1). The EPO then published the Rfees in OJ 2018 sp2 not in the text as decided by the Administrative Council, but in the text according to that Notice OJ EPO 2018, A28. Notices of the EPO have no legal force, and the EPO President can not amend the Rfees - but in the end, it is the EPO President who decides what is published in the OJ. Not the Administrative Council (or the Enlarged Board, by the way). (Admittedly, the argument of the EPO was that publishing the text of the Rfees as adopted by the AC would have been confusing for users).
There is some improvement under the new president because OJ 2019 sp2 shows the EUR 90 fee level with a footnote indicating that the fee level is not applied.
However, it is rather annoying that the text as published on 29 March indicates all kinds of changes, effective as of 1 April, which were up to now not explained or announced by the EPO.
Full disclosure: I edit the chapter on Rfees in Visser's Annotated EPC, however with the exception of Rfees2(1)1 and all other issues relating to DOCX filing.
No comments:
Post a Comment
Do not use hyperlinks in comment text or user name. Comments are welcome, even though they are strictly moderated (no politics). Moderation can take some time.