T 3098/19 - Correction of debit orders

Key points

• The appellant paid the appeal fee by mistake at the reduced rate, at the time that the reduced rate was the same as the (only) fee rate before the introduction of the reduction.
• "the appellant pointed out that it "checked by mistake the wrong appeal fee box in Form 1038 filed with the Notice of Appeal". Thus, the appellant requested that the amount of the appeal fee indicated in the debit order filed with the Notice of appeal be corrected under Rule 139 EPC." 
• " In several decisions the Boards of Appeal acknowledged the applicability of Rule 139 EPC to debit orders (cf. T 317/19, T 2620/18, T 1000/19 and T 444/20). The Board does not see any reasons to deviate from the established case law."  
• " the appellant pointed out in essence that a template had been used for creating the Notice of appeal and that the error in the amount of the appeal fee had not been detected due to the fact that the former amount for the (full) appeal fee was identical with the (then) valid amount of the reduced appeal fee. The Board finds this explanation credible. In that regard, the Board points to decision T 2620/18 (followed for instance also by T 444/20) which concerned very similar circumstances." 
• As to whether the request was made without delay: " the Board would like to point out that the relevant point in time for the question as to whether a request for correction has been filed without delay can only be the date on which the mistake had been discovered by the responsible person. Since the appellant filed the request immediately after having been informed by the EPO about the payment of the reduced appeal fee the Board considers criterion d) of G 1/12, point 37 of the Reasons, as met. " (even if this was in December 2020 whereas the Notice of appeal was filed in November 2019).
• " the correction of the debit order means that the fee payment had been effected in time and that the appeal is deemed to have been filed (cf. also J 8/19, Reasons point 3; T 317/19, Reasons point 3)." 
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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/t193098eu1.html

Reasons for the Decision

1. Request for correction of the debit order - appeal deemed to have been filed

1.1 In the present case the appellant paid only the reduced appeal fee within the time limit under Article 108, first sentence, EPC. With letter of 17 December 2020 the appellant pointed out that the payment of the reduced appeal fee was due to an "unintentional oversight and human error, the original intention of the Appellant being to pay the correct fee, i.e. the full fee, already upon filing the Form 1038 with the Notice of Appeal". Furthermore, the appellant pointed out that it "checked by mistake the wrong appeal fee box in Form 1038 filed with the Notice of Appeal". Thus, the appellant requested that the amount of the appeal fee indicated in the debit order filed with the Notice of appeal be corrected under Rule 139 EPC. Furthermore, by debit order dated 17 December 2020 the appellant paid the full amount of the appeal fee, i.e. 2705 EUR.

1.2 In several decisions the Boards of Appeal acknowledged the applicability of Rule 139 EPC to debit orders (cf. T 317/19, T 2620/18, T 1000/19 and T 444/20). The Board does not see any reasons to deviate from the established case law.

1.3 In G 1/12, Reasons 37, the Enlarged Board of Appeal summarised the following principles which the Boards of Appeal have developed as regards corrections under Rule 88, first sentence, EPC 1973 (Rule 139, first sentence, EPC):

(a) The correction must introduce what was originally intended. The possibility of correction cannot be used to enable a person to give effect to a change of mind or development of plans. It is the party's actual rather than ostensible intention which must be considered.

(b) Where the original intention is not immediately apparent, the requester bears the burden of proof, which must be a heavy one.

(c) The error to be remedied may be an incorrect statement or an omission.

(d) The request for correction must be filed without delay.

1.4 As to the above criteria a) and b) it is noted the following: The Notice of appeal contains a passage explicitly stating that the appeal fee in an amount of 1880 EUR be paid via Form 1038. Thus the amount indicated in the debit order is identical with the amount explicitly mentioned in the Notice of appeal which corresponded to the then valid amount for the reduced appeal fee. In that regard the appellant pointed out in essence that a template had been used for creating the Notice of appeal and that the error in the amount of the appeal fee had not been detected due to the fact that the former amount for the (full) appeal fee was identical with the (then) valid amount of the reduced appeal fee. The Board finds this explanation credible. In that regard, the Board points to decision T 2620/18 (followed for instance also by T 444/20) which concerned very similar circumstances. Also in that case the appellant confused the then valid reduced appeal fee with the former sole appeal fee and indicated the incorrect amount of EUR 1880 both in the notice of appeal letter and in the payment form. According to the Board in that case, it was plausible that the appellant was guided by the previously applicable, known fee amount of EUR 1880 and mistakenly assumed that it was paying the full fee (see T 2620/18, Reasons point 5.4). The present Board does not see any reason to deviate from that decision. In view of the above the Board is satisfied that the correction sought introduces what was originally intended by the appellant and that this original intention is immediately apparent.

1.5 Since the request for correction relates to the debit order provided for in Form 1038, i.e. a document filed with the EPO, it is obvious that also above criterion c) is met in the present case.

1.6 As regards criterion d) respondents I and II argued (cf. respective letters dated 29 and 28 June 2021) that the request for correction was not filed without delay in view of the considerable time span between the issuing of the opposition division's decision (25 September 2019) or of the filing of the Notice of appeal (25 November 2019) and the filing of the request for correction (17 December 2020), i.e. arguing that criterion d) as set out in G 1/12, point 37 of the Reasons, was not met in the present case.

1.7 In that regard the Board would like to point out that the relevant point in time for the question as to whether a request for correction has been filed without delay can only be the date on which the mistake had been discovered by the responsible person. Since the appellant filed the request immediately after having been informed by the EPO about the payment of the reduced appeal fee the Board considers criterion d) of G 1/12, point 37 of the Reasons, as met. The decisions cited by respondent 1 in that regard (cf. T 2620/18, Reasons points 5.7-5.9; T 444/20, Reasons point 2.4.5) do not deviate from the principle that the relevant point in time is the date on which the mistake had been discovered by the responsible person. The further cited decision T 3029/18 of 3 June 2020 (cf. Reasons point 1) is dealing with a request for re-establishment of rights and is thus not relevant for the present request for correction.

1.8 Furthermore, respondent I requested that a question of law be referred to the Enlarged Board of Appeal (cf. letter dated 29 June 2021, page 4, containing the exact wording of the request), relating to the question as to whether a period of more than one year would be acceptable for rectifying the payment of an appeal fee. In that regard both respondents argued in essence that any such rectification/correction would be detrimental to the principle of legal certainty and to the legitimate interests of the respondents and of the public.

1.9 In that regard the Board refers to above point 1.7 and its position that the relevant point in time for the question whether the correction has been requested without delay is the date on which the mistake had been discovered by the responsible person. No deviating case law has been presented by the respondents in that respect. In the present case the EPO sent the Board's communication dated 22 December 2020 addressing the issue of payment of the reduced appeal fee to the appellant already in advance with e-mail of 17 December 2020. The appellant reacted on the same day by filing its request for correction of the debit order and by paying the correct amount of the appeal fee. Thus, the Board considers criterion d) of G 1/12, point 37 of the Reasons, as met.

1.10 As regards the principle of legal certainty and the legitimate interests of the respondents and the public addressed by respondents I and II the Board would like to emphasise that in the present case a Notice of appeal has been filed and a valid amount of the appeal fee has been paid in time. In such a procedural situation neither parties to the proceedings nor the public could have legitimate expectations that the appeal is deemed not to have been filed, since it is obvious that any such finding would require a decision of the Board of Appeal.