T 1678/21 - (I) Underpaid appeal fee and T 152/82

Key points

•  The applicant files an appeal.  A debit order is given for the reduced appeal fee rate. The applicant is, however, a large company.
• The Board needs only 105 pages (pdf) to deal with the appeal fee payment.
• The Board notes that the appeal fee is validly paid "if a proper assessment of the authorisation to debit on EPO Form 1038 revealed the applicant's/appellant's clear intention to give the instruction to debit the regular fee. Such was the conclusion in recent case T 1474/19 (see below, point C.1.). The board in that case (in point 25, first paragraph) considered that the most persuasive approach to this issue was based on the principles set out, inter alia, in T 152/82, which therefore will be discussed in point C.2. below. In point C.3., this board will then analyse under which conditions the approach of T 152/82 applies to the staggered appeal fee."
• T 152/82: "A debit order must be carried out notwithstanding incorrect information given in it if the intention of the person giving the order is clear".
• "One could thus equal the view expressed in T 152/82 with considering an incorrect amount indicated in a debit order to be tantamount to an obvious error in writing, which is amenable to correction, but, being obvious, not necessary to be corrected. The difference between the incorrect amount and the error in writing being "merely" that obviousness of the incorrect amount needs to be determined after a careful analysis of the file, at an appropriate point in time, in many cases, after expiry of the pertinent period, such as the appeal period. Interpreted this way, T 152/82 can be followed."
• The Board then turns to the notorious "prescribed but not actually necessary" declaration of SME status for the reduced appeal fee: "For this board, as a preliminary matter, it must be excluded that the absence of a declaration under the Notice [OJ EPO 2018, A5] alone can be considered as an expression that the appellant did not consider itself to be an entity referred to in Rule 6(4,5) EPC (from which it might be inferred that it had the clear intention to pay the regular appeal fee; see at the end of this point). The same conclusion was drawn in point 6.2 of T 2620/18. The reason being that there is no legal basis for requiring a declaration for benefiting from a reduction of the appeal fee, as held for example in T 225/19 (point 2.4) and suggested in T 1060/19 (points 1.3.2 and 1.3.3). As stated in point C.1. above (see "Comments"), the declaration in Rule 6(6) EPC relates to the reduction of the filing and examination fees for persons referred to in Article 14(4) EPC mentioned in Rule 6(3) EPC only. Users of the European patent system have therefore been alerted to this view and might have opted to refrain from filing the declaration in respect of the appeal fee if they so wished."
• " This board considers that both T 152/82 and the summary of the subsequent case law endorsing it given in T 1474/19 (in point 14 reproduced in point C.2.1 above in fine) can be followed, but only under the condition that it is known to a board from the file as it stands at the end of the appeal period that the appellant, at the point in time of authorising the debit of the reduced appeal fee, was not entitled to the reduction of the appeal fee under Rule 6(4,5) EPC."
•  "There may be [exceptional cases]  such as those of a natural person, clearly identifiable as such, or an entity clearly identifiable as a university, where it will be obvious that they qualify for the reduced appeal fee. However, when it comes to recognising whether an organisation is a non-profit entity and when it comes to determining the correct amount of the appeal fee for a for-profit company and more precisely whether the company is an SME, what matters is not basic knowledge pertaining to the patent fee structure, as in the cases dealt with in T 152/82. In the case of a for-profit company, the knowledge required rather relates to the size of business players across the world, more specifically to their turnover and number of employees (and whether more than 25% of their equity is owned by a large enterprise)."
• "It must be noted that T 1474/19 sheds no light on how, in that particular case, the board could determine the size of the appealing company on the basis of the file as it stood at the end of the appeal period alone."
• "In the case in hand there is no exception to the rule that generally the EPO cannot detect from the file alone, without any indication that the appealing company is a large company and, therefore, does not benefit from the reduction of the appeal fee: the board could not spot the applicant's/appellant's failure to qualify as an SME from the file as it stood at the end of the appeal period."
• The Board allows the request for correction of the error in the debit order. I will discuss that part of the decision separately. 
• The Board also holds that the examining division has no jurisdiction to apply T 152/82 to the appeal fee, not even in ex parte cases: "That the examining division has no jurisdiction on this type of matter is presupposed in numerous board decisions; for payment of the appeal fee in general, see G 1/18, section B II; for payment of the reduced appeal fee by debit order see T 1474/19, point 21."
• Note, section B II of G 1/18 is quite lengthy and does not seem to expressly comment on jurisdiction.  T 1474/19, point 21 does not seem to discuss jurisdiction either. Indeed, the present Board indicates that this is "presupposed".
• As a comment, I think T 0152/82 doesn't require absolute certainty on the side of the EPO as to what the party intended. 
• As a further comment, T 0152/82 may illustrate the principle that the EPO should act in accordance with "the principles of good faith which govern the relations between the Office and applicants" (cf. J10/84) when interpreting a debit order. If the Board is genuinely unsure if an applicant is an SME or a large corporation, the Board may indeed not be in a position to apply the principle of T 0152/82. 

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t211678eu1.html