T 1538/19 - Correction of debit order

Key points

• The appellant pays the appeal fee at the reduced rate by debit order. After an invitation of the Board to submit evidence of the SME status, the appellant requests a correction of the debit order.
• " The Board is convinced that by filing the appeal the appellant had the intention to pay the full appeal fee. In its supplemental declaration of 3 September 2020 the appellant's professional representative convincingly stated that it had never been his intention to pay the reduced fee - because his client never gave such an instruction - and that the error occurred simply because a member of the support staff ticked the wrong box on the form which he then overlooked. This is also in line with point 5 of the declaration of the representative's assistant, dated 6 March 2020. The Board has no reason to mistrust these statements. By contrast, nothing in the file indicates that the payment of the full fee could not have been intended. The Board therefore concludes that, in this case, the submitted evidence meets the requirements set out by the Enlarged Board." 
• The appeal is considered to have been filed. 

EPO 

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

https://new.epo.org/en/boards-of-appeal/decisions/t191538eu1.html

1. The request for correction of the error under Rule 139 EPC on EPO Form 1038 and in the Notice of Appeal is admissible and allowable.

2. According to Rule 139, first sentence EPC, linguistic errors, errors of transcription and mistakes in any document filed with the EPO may be corrected on request. The Boards of Appeal have accepted that errors regarding payment of the appeal fee, in particular the amount, on online forms can be corrected under Rule 139, first sentence EPC (see decisions J 8/19, T 317/19 and T 444/20, all referring to G 1/12).

3. In G 1/12, the Enlarged Board of Appeal has summarised the principles developed by the Boards of Appeal with regard to corrections under Rule 139, first sentence EPC (point 37 of the reasons):

(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.

4. Despite its preliminary opinion the Board is convinced that by filing the appeal the appellant had the intention to pay the full appeal fee. In its supplemental declaration of 3 September 2020 the appellant's professional representative convincingly stated that it had never been his intention to pay the reduced fee - because his client never gave such an instruction - and that the error occurred simply because a member of the support staff ticked the wrong box on the form which he then overlooked. This is also in line with point 5 of the declaration of the representative's assistant, dated 6 March 2020. The Board has no reason to mistrust these statements. By contrast, nothing in the file indicates that the payment of the full fee could not have been intended. The Board therefore concludes that, in this case, the submitted evidence meets the requirements set out by the Enlarged Board.

5. Thus the requirements (a), (b) and (c) set out in G 1/12 with regard to corrections under Rule 139 EPC (see point 3 above) are met. Furthermore, since the appellant filed the request for correction only one week after having received the Board's communication indicating for the first time that the prescribed appeal fee was not validly paid, the request is also filed in due time (see requirement (d) of G 1/12 cited above under point 3).

6. As a consequence, the appeal is retroactively deemed to have been filed, the correction under Rule 139 EPC having effect ex tunc (see G 1/12, reasons 37; T 317/19, reasons 2.5).

7. The Board notes that the appellant has now overpaid the appeal fee by the amount of EUR 1880 (see point IV, above), which is to be reimbursed.

Order



For these reasons it is decided that:

1. The request for correction under Rule 139 EPC is allowed.

2. The appeal is deemed to have been filed.