T 2361/18- Within one month of notification can also be before

Key points

•  Rule 103 EPC is a gift that keeps on giving for this weblog.
• "According to Rule 103(4)(c) EPC, the appeal fee is to be reimbursed at 25% if any request for oral proceedings is withdrawn "within one month of notification" of a communication issued by the board in preparation for the oral proceedings, and no oral proceedings take place. "
• "In the present case, the appellant withdrew its request for oral proceedings after the board had issued the summons to oral proceedings but before notification of a communication issued in preparation for the oral proceedings. "
• " The question therefore arises how "within one month of notification" is to be understood."
• "Although point 84 of CA/80/19 refers to the notification of the board's communication in Rule 103(4)(c) EPC as "[t]he point at which the appellant ... should be incentivised to withdraw the request for oral proceedings", the board sees insufficient reason to treat the condition "within one month of notification" in Rule 103(4)(c) EPC differently from the corresponding condition in Rule 103(3)(a) EPC. Indeed, a "too early" withdrawal of the request for oral proceedings only makes it more likely that the board will be able to use the freed-up capacity to schedule oral proceedings in another appeal case (cf. CA/80/19, point 82)."
• "Hence, for the purpose of Rule 103(4)(c) EPC, in the present case the request for oral proceedings was withdrawn "within one month of notification" of a communication by the board."
• And the same applies for the withdrawal of an appeal "within one month of notification" for the purpose of Rule 103(3)(a) EPC.

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t182361eu1.html

3. Partial reimbursement of the appeal fee

3.1 In the present case, the appellant withdrew its request for oral proceedings after the board had issued the summons to oral proceedings but before notification of a communication issued in preparation for the oral proceedings. According to Rule 103(4)(c) EPC, the appeal fee is to be reimbursed at 25% if any request for oral proceedings is withdrawn "within one month of notification" of a communication issued by the board in preparation for the oral proceedings, and no oral proceedings take place. The question therefore arises how "within one month of notification" is to be understood.

3.2 A similarly worded condition is present in Rule 103(3)(a) EPC, which stipulates that the appeal fee is to be reimbursed at 50% if the appeal is withdrawn, if a date for oral proceedings has been set, within one month of notification of a communication issued by the board in preparation for the oral proceedings. Points 72 and 74 of the explanatory remarks in CA/80/19 explain that this condition is intended to set an "end point" for the withdrawal of the appeal, meaning that the reimbursement possibility under Rule 103(3)(a) EPC "is available up to" the expiry of a period triggered by the notification of the mandatory communication under Article 15(1) RPBA.

Hence, if an appeal is withdrawn after a date for oral proceedings has been set but before the notification of a communication issued in preparation for the oral proceedings, the withdrawal occurs "within one month of notification" for the purpose of Rule 103(3)(a) EPC.

3.3 Although point 84 of CA/80/19 refers to the notification of the board's communication in Rule 103(4)(c) EPC as "[t]he point at which the appellant ... should be incentivised to withdraw the request for oral proceedings", the board sees insufficient reason to treat the condition "within one month of notification" in Rule 103(4)(c) EPC differently from the corresponding condition in Rule 103(3)(a) EPC. Indeed, a "too early" withdrawal of the request for oral proceedings only makes it more likely that the board will be able to use the freed-up capacity to schedule oral proceedings in another appeal case (cf. CA/80/19, point 82).

Hence, for the purpose of Rule 103(4)(c) EPC, in the present case the request for oral proceedings was withdrawn "within one month of notification" of a communication by the board.

3.4 The board is aware of decision T 853/16, which held that reimbursement under Rule 103(2) EPC, which includes the condition "within two months of notification" of a communication indicating the board's intention to start substantive examination of the appeal, is not possible if the appeal is withdrawn before that communication is issued. However, unlike Rule 103(3)(a) and (4)(c) EPC, Rule 103(2) EPC explicitly requires the withdrawal to be "in response to" the communication (see T 853/16, Reasons 7). Moreover, unlike a communication under Rule 103(2) EPC (see T 853/16, Reasons 9), a communication issued in preparation for the oral proceedings is now mandatory under Article 15(1) RPBA 2020.

3.5 The board therefore concludes that the conditions set in Rule 103(4)(c) EPC for reimbursement of the appeal fee at 25% are complied with.

4. Since the sole request on file is not allowable, the appeal is to be dismissed.

Order

For these reasons it is decided that:

1. The appeal is dismissed.

2. The appeal fee is reimbursed at 25%.