Key points
- In T 1385/24, the applicant filed an appeal against a refusal decision dated 18.07.2024. The notice of appeal was filed in time, and the appeal fee was paid, but the Statement of grounds was filed late. No remedy was applied for. The appeal was rejected as inadmissible by a decision dated 20.02.2025 (issued in writing and notified on 26.02.2025).
- A divisional application was filed on 05.12.2024. Was the parent application pending on that day?
- The Board, in machine translation: " The Board is therefore of the opinion that the view expressed in J 22/13 should no longer be followed. "
- J 22/13: "Since the divisional application was filed only after the time limit for filing the statement of grounds of appeal in the parent application had already expired, the Board considered the parent application to be no longer pending at that point: there was no longer any possibility of carrying out a substantive examination of the parent application. After the expiry of the time limit for filing the statement of grounds of appeal, no ordinary legal remedies existed, and the decision became final"
- "if – as in the present case – an appeal that was initially validly filed subsequently becomes inadmissible because the statement of grounds of appeal is not filed or is filed only after the expiry of the prescribed time limit, this is not a sufficient reason to make an exception to Article 106(1), second sentence, EPC and to consider the suspensive effect that initially took effect as having been lifted as soon as the time limit for filing the statement of grounds of appeal expired. Rather, the suspensive effect ends only with the conclusion of the appeal proceedings, in the present case, that is, after the Board of Appeal has determined the inadmissibility of the appeal by decision. This termination has no retroactive effect with regard to divisional applications that were filed while the suspensive effect was in force. "
- "it follows from the decision of the Enlarged Board of Appeal G 2/19 that it is very problematic to adopt a general concept of a manifestly inadmissible appeal. [The EBA] therefore declined to answer question 1, which used this concept. The question, with its criterion of an "appeal that is inadmissible at first glance," relieD on an indeterminate legal concept that does not originate in the EPC and for whose specification no further indications can be found therein (Reasons A.IV)."
- G 2/19, question 1: "1. In appeal proceedings, is the right to oral proceedings under Article 116 EPC limited if the appeal is manifestly inadmissible?"
- It may be noted that German national law (national patent law) has the concept and dispenses with hearings in such cases. However, the details of the German practice are unclear to me.
- The published decision is anonymised because the divisional application (EP24217722.8) is not yet published.
- The Legal Board seems to suggest that a timely appeal by the applicant/proprietor against a grant decision may open the possibility of filing a divisional application, following J 1/24 and disagreeing with T 700/25, but leaves that issue open.
- The Legal Board recalls that a late-filed appeal (notice of appeal and/or payment of the appeal fee) is not inadmissible but is deemed not to have been filed (G 1/18) and explains that, hence, such an appeal does not open the possibility of filing an appeal.
EPO
The link to the decision is provided after the jump.
