G01/18: An Appeal Is Deemed ‘Not Filed' If The Appeal Fee Is Paid Late And/Or The Notice Of Appeal Is Filed Late

The decision of case G01/18 has recently been published in French by the EPO's Enlarged Board of Appeal (EBoA). The conclusion reached was that late payment of the appeal fee and/or late filing of the notice of appeal results in the appeal being deemed not filed.

The EBoA's specific findings were that an appeal is deemed as not filed in each of the following circumstances:

(i) where the appeal fee was paid late whilst the notice of appeal was filed on time;

(ii) where both the appeal fee was paid late and the notice of appeal was filed late; and

(iii) where the appeal fee was paid on time but the notice of appeal was filed late.

For each of the above scenarios (i), (ii) and (iii) the appeal fee should be reimbursed. Further, where no notice of appeal was filed whilst the appeal fee was paid prior to or after the two-month deadline, the appeal fee should be reimbursed.

Importantly, this decision provides clarity regarding the status of an appeal and the reimbursement of an appeal fee under the above-explained circumstances. Whilst a surprisingly large number of appeals boards (including one enlarged board in R02/10) had previously found that an appeal should be treated as inadmissible under one of the above-described scenarios, the consequence of these (now determined to be incorrect) rulings was that the appeal fee (€2,255 as of time of writing) was not reimbursed in those cases. Accordingly, the only damage to the prospective appellants in each of the 'minority' case law cases due to this misinterpretation of the EPC was financial, with no rights having actually been lost as a consequence. This decision should prevent boards of appeal from taking decisions in future which would deny a refund of the appeal fee under any of the above-described circumstances, whilst also drawing a line under the divergence that had developed in this area of (seemingly) straightforward case law.

Meanwhile, there does not appear to be any rhyme or reason as to why so many appeal boards previously decided that an appeal should be deemed inadmissible rather than not filed under one of the above-explained circumstances. For example, there is arguably a difference between the text of Article 108 EPC depending on the language in which it is read (with the English text more clearly connecting non-filing with failure to meet the two month deadline). However, most of the minority case law decisions were published in English and, therefore, it seems unlikely that the...