T 0517/17 - Appeal fee refund

 Key points

• There is as of yet no end to the case law about amended Rule 103.
• This Board disagrees with T 0073/17 and finds that for the partial refund of Rule 103(4)(c) EPC, it is enough for the appellant to announce that it will not attend the oral proceedings.
• “the board is aware that, [...]  it departs from an extensive obiter dictum set out in decision T 73/17 (Reasons, point 9.3). In that decision, the competent board, relying on document CA/80/19, maintained that new Rule 103(4)(c) EPC required an express withdrawal. Although the board referred to the case law according to which the announcement of non-attendance is considered to be an implicit withdrawal, it considered that this case law, even if it was correct, could not apply to Rule 103(4)(c) EPC. ”
• “However, this board holds that, if it is true that the express announcement of not attending arranged oral proceedings before the board is equivalent to a withdrawal of the request for them, this must be true and valid for all effects that the EPC and the case law attach to a withdrawal. It does not appear to be justified to qualify the express announcement as equivalent to a withdrawal for the purposes of the question of whether appointed oral proceedings shall take place, but as not equivalent for the purposes of the question of whether fees shall be refunded.”
• As a comment, let's see if the case law settles on a consensus or whether a referral to the Enlarged Board is necessary. 
• The present Board adds, somewhat mysteriously in my view: “Against this background, it is not necessary to assess whether CA/80/19 can constitute evidence for the intentions of the legislator. Nor has the board to decide whether it is possible or necessary to resort to the preparatory work associated with new Rule 103 EPC for the specific issue discussed here, considering the requirements laid down in Article 32 of the Vienna Convention on the Law of Treaties.” 

EPO T 0517/17 - refund appeal fee

https://www.epo.org/law-practice/case-law-appeals/recent/t170517eu1.html

decision text omitted