T 2170/21 - Debit order for oppo fee instead of appeal fee

Key points

•  In translation: "III. The patent proprietor filed its notice of appeal pursuant to Article 108, first sentence, EPC on 2 December 2021 through its representative electronically using the EPO Online Filing Software ('OLF') []. The filing was made using the form "Submission in opposition proceedings." In this form and also in the notice of appeal submitted as an annex, the appellant patent proprietor was named as opponent (page 1 of the form: "representing the opponent(s) dormakaba Deutschland GmbH"; page 1 of the notice of appeal: "In the name and on behalf of the opponent, i.e., dormakaba Deutschland GmbH"). Instead of the payment of the appeal fee announced in the notice of appeal (page 2: "The official appeal fee is paid."), this form authorizes the EPO to debit an opposition fee from the representative's deposit account (page 2: "010 Opposition fee ... Amount to be paid 815.00"). The opposition fee was debited from the deposit account on December 3, 2021, with the debit date of December 2, 2021."
•  On December 22, 2021, and thus undisputedly after the expiry of the time limit for payment of the appeal fee, the representative requested corrections to the debit order of December 2, 2021, under Rule 139, first sentence, EPC. The corrections concerned the debiting of an appeal fee and the amount to be debited, EUR 2,705. The (full) appeal fee was debited from the representative's current account on December 23, 2021, with the debit date of December 22, 2021."
•  On the admissibility of the various arguments and request about the admisisibility of the appeal: "The possibility of correcting the fee payment under Rule 139 EPC is, in principle, not a question of fact requiring proof, but a question of law. As mentioned above, the relevant facts to be considered for assessing this legal issue were, for the most part, already on file. As is also clear from the submissions of the parties, the case law of the Boards of Appeal has not developed uniformly over the years (see below). Furthermore, a large number of appeal decisions based on facts comparable to the present case are not available. Under these circumstances, it is unreasonable to expect the parties not to subsequently supplement their arguments, particularly regarding legal interpretation. Arguments regarding legal interpretation should, in principle, not be surprising or unreasonable for the Chamber. This likely follows from the legal principle "the court knows the law" (iura novit curia)."
•  The Board sees no reason to question the general possibility of correcting an erroneous fee payment under Rule 139 EPC, following decision T 0071/21, point 6.3 of the Reasons, cited by the Respondent, and the other decisions cited therein."
• "The board agrees with the respondent that re-establishment of rights under Article 122 EPC may also be an appropriate means of retroactively correcting the serious legal consequences of insufficient fee payment. The consequences of insufficient fee payment are that the appeal fee is deemed not to have been paid and thus the appeal is deemed not to have been filed, which in turn amounts to a failure to comply with a time limit. Had the appellant been unsuccessful in its request for correction under Rule 139 EPC, this option would – at least in theory – still have been open to it. However, this possibility does not preclude the application of Rule 139 EPC. The EPC does not contain a mutual exclusionary rule between Rule 139 and Article 122 EPC comparable to Article 121(4) or Rule 136(3) EPC."
• "the Board does not see any threat to legal certainty or a change of will on the part of the patent proprietor. The Board has no indications, let alone evidence, that the requested correction—namely, the payment of the appeal fee from the representative's current account—was not originally intended. This cannot be deduced from the patent proprietor's notice of appeal. The mere fact that the wording used is open does not justify a serious suspicion that the use of the incorrect form was not accidental, but deliberate. "
• " For these reasons, the board decided to grant the request for correction under Rule 139 EPC. The appeal is therefore deemed to have been validly filed. "
• The appeal is examined on the merits and is dismissed.

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/t212170du1