T 2972/18 - Notice of appeal late

Key points

• In this examination appeal, the refusal decision was posted on 20.09.2018. The Notice of appeal was filed on 03.12.2018, the appeal fee was paid on the same date. That is too late (the appeal period expired on Friday 30.11.2018; the fact that 20.09 + 10 days =  30.09 is a Sunday does not matter, of course). 
• In this decision taken on 03.06.2019, the appeal is rejected as inadmissible. No refund of the appeal fee is ordered.
• That is a pity because, on 18.07.2019, the Enlarged Board issued opinion G 1/18 stating that also in this case, the appeal fee is to be reimbursed and the appeal is deemed to not have been filed (G1/18 headnotes 1(b) and 2).
• I don't know why the Board did not wait for G 1/18 in this case. It was an ex parte appeal so any need for disposing of it in June 2019 is not apparent to me.  
• 20.09.2019: edited to correct typo's in the dates above.

Summary of Facts and Submissions

I. The appeal is directed against the decision of the Examining Division of 20 September 2018, posted on the same day.

II. The appellant filed a notice of appeal on 3 December 2018 and paid the appeal fee on the same day.

III. By communication of 15 January 2019, received by the appellant, the Registry of the Board informed the appellant that it appeared from the file that the notice of appeal had not been filed in due time, and that it was therefore to be expected that the appeal would be rejected as inadmissible pursuant to Article 108, first sentence, EPC in conjunction with Rule 101(1) EPC. The appellant was informed that any observations had to be filed within two months of notification of the communication.

IV. No reply was received.

Reasons for the Decision

No observation was filed within the time limit provided by Article 108, first sentence, EPC in conjunction with Rule 126(2) EPC. Therefore, the appeal has to be rejected as inadmissible (Rule 101(1) EPC).

Order

For these reasons it is decided that:

The appeal is rejected as inadmissible.