T 2447/22 - A communication under Rule 103(2) EPC

Key points

•  Rule 103(2) EPC specifies that "The appeal fee shall be reimbursed at 75% if, in response to a communication from the Board of Appeal indicating its intention to start substantive examination of the appeal, the appeal is withdrawn within two months of notification of that communication. ". The Administrative Council introduced this provision in 2020. At that time, there were no such communications. The Administrative Council did not amend the Implementing Regulations to require the Boards to issue such a communication before they start the substantive examination - G 6/95  may have something to do with this.  The RPBA neither contain a provision instructing the Boards to issue such communications, which would be the appropriate place in view of G6/95.  (I'm not sure whether the President of the Boards, Presidium and BOAC considered the introduction of Rule 103(2); the chronology of both rule changes is partly overlapping. I suppose that the whole package of measures regarding the appeal fee of  CA/80/19 was prepared in consultation with the Boards). 
• I don't know if there are any Boards that regularly issue communications under Rule 103(2) or whether this is done regularly in "long-pending appeal cases" (cf. the explanatory notes to Rule 103(2) in CA/80/19, para. 66). 
• The yearly list of cases of the Boards (introduced by the RPBA 2020) is no such communication, though it serves the same purpose to some extent (but is not notified to the parties for reasons so parties need not be aware of it). 
• In this case, the applicant withdrew the appeal before substantive examination of the appeal had begun but without a communication in the sense of Rule 103(2) being issued, requesting the 75% refund, arguing essentially that Rule 103(2) should not be interpreted in a grammatical way only. The Board refuses the 75% refund but gives the 50% refund under Rule 103(3).
• The Board: "The clear and explicit wording of Rule 103(2) EPC precludes the application of this Rule suggested by the appellant based on its alleged ratio legis, as such an application would directly contradict this wording."
• "he clear and explicit wording of Rule 103(2) EPC also rules out the possibility of applying this Rule in a manner analogous to that employed in T 2361/18 for Rule 103(4)(c) EPC. Incidentally, contrary to the appellant's view, the legal situations in T 2361/18 and the present case are different. Unlike Rule 103(2) EPC, Rule 103(4)(c) EPC does not explicitly require that the withdrawal of an appeal be "in response to a communication from the Board of Appeal" (cf. T 2361/18, reasons, point 3.4). "
• "the Board takes from points 66 and 67 of document CA/80/19 (see [the quote of the Board's preliminary opinion given in the  "Summary of Facts and Submissions"]  point 14) that the ratio legis of Rule 103(2) EPC went beyond reducing the appeal backlog by incentivising withdrawals. Additionally, the legislator intended to provide the Boards of Appeal with a tool for steering the timing of appeal withdrawals in order to reduce situations where the withdrawal of an appeal coincided with its examination by the Boards. Furthermore, the legislator's intention was to leave it up to the Boards whether to use this tool - a communication indicating the intention to start substantive examination of the appeal is not mandatory ([the quote of the Board's preliminary opinion given in the  "Summary of Facts and Submissions"], point 16).
• The Board in the preliminary opinion also refers to the Vienna Convention, finding that: " This result of a literal interpretation of Rule 103(2) EPC is confirmed by document CA/80/19, which is a supplementary source pursuant to Article 32 of the Vienna Convention." However, the travaux préparatoires are no supplementary source to the literal interpretation but to the 'holistic' interpretation under Article 31(1) (a "treaty 'shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"). See J5/23.
   
• The applicant could p
• ossibly have asked for a Communication under Rule 103(2) before withdrawing the appeal. The Board would then decide on such a request taking into account the appellant's legitimate interests. 

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t222447eu1

1. The appellant withdrew the appeal and at the same time filed a request for reimbursement of the appeal fee. Thus, the appeal proceedings are terminated, as far as substantive issues are concerned, and the sole issue to be decided is the appellant's request for reimbursement of 75% of the appeal fee.

2. Since the appellant withdrew their request for oral proceedings, the decision is taken in writing.

3. In the communication, cited at section IV above (hereinafter: cited communication), the Board took the same approach as decision T 0853/16 that concerned the identical procedural situation (see cited communication, point 3). More specifically, in line with the findings of T 0853/16, the Board considered that the issuance of a communication indicating a Board's intention to start substantive examination of the appeal was a mandatory requirement for the 75% refund of the appeal fee (points 8 to 10). Since, in the present case, the Board did not issue such a communication, this requirement was not met and the appellant was not entitled to the reimbursement of the appeal fee at 75%. Instead, the appeal fee was to be reimbursed at 50% according to Rule 103(3)(c) EPC (point 18).

Furthermore, following the approach taken in T 0853/16, the Board considered that the clear and explicit wording of Rule 103(2) EPC left no room for contradictory interpretations (points 6 to 8).

4. The Board is not convinced by the arguments provided by the appellant in response to the cited communication (see section VIII above).

4.1 The clear and explicit wording of Rule 103(2) EPC precludes the application of this Rule suggested by the appellant based on its alleged ratio legis, as such an application would directly contradict this wording.

Moreover, contrary to the appellant's view, the Board takes from points 66 and 67 of document CA/80/19 (see cited communication, point 14) that the ratio legis of Rule 103(2) EPC went beyond reducing the appeal backlog by incentivising withdrawals. Additionally, the legislator intended to provide the Boards of Appeal with a tool for steering the timing of appeal withdrawals in order to reduce situations where the withdrawal of an appeal coincided with its examination by the Boards. Furthermore, the legislator's intention was to leave it up to the Boards whether to use this tool - a communication indicating the intention to start substantive examination of the appeal is not mandatory (cited communication, point 16).

4.2 The clear and explicit wording of Rule 103(2) EPC also rules out the possibility of applying this Rule in a manner analogous to that employed in T 2361/18 for Rule 103(4)(c) EPC. Incidentally, contrary to the appellant's view, the legal situations in T 2361/18 and the present case are different. Unlike Rule 103(2) EPC, Rule 103(4)(c) EPC does not explicitly require that the withdrawal of an appeal be "in response to a communication from the Board of Appeal" (cf. T 2361/18, reasons, point 3.4).

5. Hence, the appellant's request for reimbursement of the appeal fee at 75% under Rule 103(2) EPC must be refused. Under Rule 103(3)(c) EPC, the appeal fee is to be reimbursed at 50%.

6. The Board notes that the requirements for a reimbursement of the appeal fee at 25% under Rule 103(4)(c) EPC are also fulfilled. However, Rule 103(5) EPC states that the appeal fee shall be reimbursed under only one of the provisions laid down in this Rule, and where more than one rate of reimbursement applies, the reimbursement shall be at the higher rate, which in this case is 50%.

Order

For these reasons it is decided that:

1. The request for reimbursement of the appeal fee at 75% is refused.

2. Reimbursement of the appeal fee at 50% is ordered.