T 2704/16 - Refund appeal fee only

Key points

• In this examination appeal, the applicant had requested a refund of the appeal fee. The applicant then submits a letter stating that the appeal was withdrawn and requesting a decision according to the state of the file. The Register then explained (in a telephone conversation) that this contradictory. The appellant then conformed the intention to request a decision according to the state of the file. 
• Subsequently, the renewal fee is not paid, also not with an additional fee.
• This makes that the application is withdrawn. The Board still decides on the request for refund of the appeal fee and refuses it, because the appeal was not (actively) withdrawn. 
• " A withdrawal of an appeal must be expressed in unambiguous terms. The appellant's statement in his letter dated 18 May 2018 that the appeal was withdrawn was in direct contradiction to the request for a decision according to the state of the file, because a withdrawal of the appeal leads to the decision of the department of first instance taking legal effect without a decision by the Board. In view of this contradiction the letter dated 18 May 2018 did not contain a valid request for a withdrawal of the appeal." 

Reasons for the Decision

1. This decision only concerns the appellant's request for reimbursement of the appeal fee. No substantive requests can be considered as the application is deemed withdrawn pursuant to Article 86(1) EPC. The request for oral proceedings is considered withdrawn in view of the subsequent request for a decision according to the state of the file.

2. The appellant has not given any reason as to why the appeal fee should be reimbursed. The Board cannot see any such reason either. The legal basis for reimbursement of the appeal fee is provided for in Rule 103 EPC. According to this rule the appeal fee may be reimbursed if a substantial procedural violation occurred in the proceedings before the department of first instance (and certain additional conditions are fulfilled - see Rule 103(1)(a) EPC) or if the appeal has been withdrawn at a certain stage of the appeal proceedings (Rule 103(1)(b) and (2) EPC). However, neither of these conditions have been fulfilled in the case before the Board - the appellant has neither alleged a substantial procedural violation nor has he withdrawn the appeal.

3. A withdrawal of an appeal must be expressed in unambiguous terms. The appellant's statement in his letter dated 18 May 2018 that the appeal was withdrawn was in direct contradiction to the request for a decision according to the state of the file, because a withdrawal of the appeal leads to the decision of the department of first instance taking legal effect without a decision by the Board. In view of this contradiction the letter dated 18 May 2018 did not contain a valid request for a withdrawal of the appeal. The appellant's letter dated 11 June 2018 clarified the appellant's intention to request a decision according to the state of the file and not to withdraw the appeal.

Order

For these reasons it is decided that:

The request for reimbursement of the appeal fee is refused.