Summary of Facts and Submissions 
I. On 16 October 1981, the applicant filed notice of appeal
against a decision of an Examining Division of the European
Patent Office. The fee for appeal was duly paid.
II. By letter dated 14 December 1981, the applicant withdrew the
appeal and requested reimbursement of the appeal fee, in effect
relying upon the fact that, as no statement of grounds of appeal
had been filed, no substantive work could have been done upon
the appeal, and asserting that, although there was no express
provision for reimbursement of appeal fees in such circumstances
the possibility was not excluded.
Reasons for the Decision
1. Reimbursement of appeal fees is possible in a case in which
no notice of appeal is filed or deemed to have been filed within
the time limit prescribed by Article 108 EPC, so that no appeal
has ever existed.
2. Reimbursement of appeal fees may be ordered, if such
reimbursement is equitable by reason of a substantial procedural
violation in a case in which the department whose decision is
contested considers the appeal to be well founded and rectifies
its decision in accordance with Article 109 (1) EPC: Rule 67
EPC.
3. Reimbursement of appeal fees may be ordered where a Board of
Appeal deems an appeal to be allowable, if such reimbursement is
equitable by reason of a substantial procedural violation: Rule
67 EPC.
4. The restrictive language of Rule 67 EPC is plainly
inconsistent with the idea that a Board of Appeal has a wide
discretion to order reimbursement of appeal fees. The terms of
other provisions, notably Article 110 (1) and Rule 65 (1) EPC,
prevent a Board of Appeal from even considering whether an
appeal can be deemed to be allowable until the decision has been
taken that the appeal is admissible. Such a decision cannot be
taken unless, inter alia, a statement of grounds of appeal has
been duly filed, in accordance with Article 108 EPC.
5. It follows that the Board of Appeal must reject the
applicant's submission that the possibility for reimbursement of
the appeal fee in the present case is not excluded.
6. As the applicant's appeal has been withdrawn, the present
decision is given by the Board in the exercise of its inherent
original jurisdiction to consider applications made to it in
matters arising out of or in connection with the former appeal
proceedings.
ORDER
For these reasons, it is decided that:
The application for reimbursement of the appeal fee made in the
applicant's letter dated 14 December 1981 is rejected.
Remarks:
O.J. EPO issue: 1982,256
Case law reports: CLBA 1996 ; OJ/EPO-SE 1996
