T 2249/18 - No request OP still partial refund

 Key points

• In this examination appeal, the applicant did not request oral proceedings. The Board nevertheless summoned for oral proceedings. In response, the applicant in effect filed a new allowable main request. Oral proceedings are cancelled. Even  though there was no request for oral proceedings and no withdrawal of a request for oral proceedings, the Board still gives a partial refund of the appeal fee.
• The Board, on the partial refund of the appeal fee: “The oral proceedings have been cancelled in consequence of the appellant's [applicant's] request [of 14 May 2021] that the auxiliary request filed with letter dated 20 April 2021 be considered as main request. In the case at issue, the decision to hold oral proceedings has been made by the board rather than requested by the appellant. For the purposes of Rule 103(4)(c) EPC, the board likens this case to the one where a request for oral proceedings has been made by the appellant, though, as also in the case at issue conducting oral proceedings has become unnecessary by an act of the appellant, namely to file a request that overcomes the objections raised by the board. Hence, the appeal fee shall be reimbursed at 25% in an analogous application of Rule 103(4)(c) EPC.”
• As a  comment, it seems quite remarkable that the appeal fee is reimbursed in this case based on analogous application of Rule 103(4)(c) EPC, i.e. not actually based on Rule 103(4)(c) EPC but based on some unwritten analogous rule. 
• The last summons was dated 26.04.2021 (rescheduling).

T 2249/18
https://www.epo.org/law-practice/case-law-appeals/recent/t182249eu1.html

Summary of Facts and Submissions

I. This appeal was filed by the applicants (hereinafter, the appellants) against the decision of the examining division to refuse European patent application 14728578.7, because the subject-matter of the claims according to then pending sole request was obvious in view of the prior art disclosed in D1 (WO 2012/175987 A1) or in view of the combination of D1 with D2 (WO 2009/156317 A1).

II. The board summoned the appellants to oral proceedings.

III. In response to the Board's communication in preparation for oral proceedings, with letter dated 20 April 2021, the appellants filed two sets of amended claims labelled as main request and auxiliary request, replacing the requests previously on file.

IV. With a further communication of 12 May 2021, the board informed the appellants, inter alia, that (only) the auxiliary request appeared both admissible and to comply with the EPC and, therefore, that the oral proceedings would be cancelled if the appellants made the auxiliary request filed with letter of 20 April 2021 their only claim request.

V. With letter of 14 May 2021 the appellants requested that the auxiliary request filed with letter dated 20 April 2021 be considered as their new main request.

VI. The set oral proceedings were therefore cancelled.

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Reasons for the Decision

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5. The oral proceedings have been cancelled in consequence of the appellant's [applicant's] request that the auxiliary request filed with letter dated 20 April 2021 be considered as main request. In the case at issue, the decision to hold oral proceedings has been made by the board rather than requested by the appellant. For the purposes of Rule 103(4)(c) EPC, the board likens this case to the one where a request for oral proceedings has been made by the appellant, though, as also in the case at issue conducting oral proceedings has become unnecessary by an act of the appellant, namely to file a request that overcomes the objections raised by the board. Hence, the appeal fee shall be reimbursed at 25% in an analogous application of Rule 103(4)(c) EPC.

Order

For these reasons it is decided that:

The decision under appeal is set aside.

The case is remitted to the examining division with the order to grant a patent with claims 1 to 5 of the main request (filed as auxiliary request with letter dated 20 April 2021) and a description to be adapted thereto.

The appeal fee shall be reimbursed at 25%.