J 0022/85 (Payment order) of 23.7.1986

Summary of Facts and Submissions

I. On 14 November 1984, the appellant filed European patent application No. 84 113 758.1 in person. The basic period for paying the filing fee and search fee under Article 78(2) EPC therefore expired on 14 December 1984, but no payment had been received at the European Patent Office by that date. In accordance with Rule 83 EPC, the period of grace referred to in Rule 85a EPC expired on 14 February 1985. The filing fee, search fee and surcharge were paid by cheque on 15 February.

II. In a communication dated 11 March 1985, the appellant was advised that, pursuant to Article 90(3) EPC, the patent application was deemed to be withdrawn. Attention was drawn to the possibility of producing evidence in accordance with Article 8(3) of the Rules relating to Fees (RFees) that the period had been observed. In a letter dated 10 May 1985, the appellant requested a decision from the Receiving Section, without producing such evidence. In their decision of 3 June 1985, the Receiving Section declared that the European patent application was deemed to have been withdrawn because the filing fee and search fee had not been paid within the periods laid down in Article 78(2) and Rule 85a EPC.

III. On 3 August 1985, the appellant lodged an appeal against this decision and paid the fee. The grounds for appeal were submitted on 5 October 1985.

IV. In the statement of grounds signed by himself, the appellant stated that on 1 February 1985 he had in due form instructed a bank to remit the filing fee, search fee and surcharge. On 12 February he realised that the remittance had not been made and had therefore rescinded the payment order and sent a cheque for the amount by express delivery to the European Patent Office, where it was received on 15 February 1985.

V. In his statement of grounds, the appellant requested that, in view of the aforementioned circumstances, the period for payment of the filing and search fees should be regarded as having been observed in accordance with Article 8(3)(b) RFees. Alternatively, he requested a declaration that under Rule 83(2) EPC the one-month period laid down in Article 78(3) had begun on 15 November 1984 and the twomonth period under Rule 85a EPC on 15 December 1984, so that the period under Rule 85a EPC ended on 15 February 1985. If these dates were taken as a basis, his payment had been made in time.

VI. In a communication dated 23 January 1986, the appellant was informed that the Board would be taking 14 February 1985 as the date on which the period under Rule 85a EPC had expired. At the same time he was asked to produce adequate evidence. The appellant submitted a copy of his payment order of 1 February 1985 and a copy of his cheque of 12 February 1985, together with a statutory declaration dated 20 May 1986.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC, and is therefore admissible.

2. Rule 83 EPC regulates the calculation of time limits. When periods are expressed as months, computation commences on the day following the day on which the relevant event occurred and the period expires in the relevant subsequent month on the day which has the same number as the day on which the said event occurred. If one starts the computation from the day following the event, a period of one or more full months is then available if the period ends on the day with the same number in the following month as the day on which the initial event occurred. In the present case, it therefore follows that: (a) the one-month period under Article 78(2) EPC expired on 14 December 1984; the period from 15 November to 14 December 1984 inclusive constitutes a period of one full month; (b) the two-month period under Rule 85a EPC expired on 14 February 1985. The period from 15 December 1984 to 14 February 1985 inclusive constitutes a period of two full months. Consequently, in the case in point, 14 February 1985 was the last day on which the filing and search fees could have been paid, together with the surcharge required under Rule 85a EPC. Under these circumstances, the appellant's submission that his cheque had been received within the period laid down in Rule 85a must be rejected.

3. Article 8(3)(b) RFees states: "Where ... payment of a fee is not considered to have been made until after expiry of the period in which it should have been made, it shall be considered that this period has been observed if evidence is provided to the Office that the person who made the payment fulfilled one of the following conditions in a Contracting State not later than ten days before the expiry of such period: ... (b) he duly gave an order to a banking establishment or a post office to transfer the amount of the payment". Because in the present case the Receiving Section knew only that the payment by cheque of 12 February 1985 had been received on 15 February 1985, since the applicant had not submitted any evidence of his payment order of 1 February 1985, the decision of the Receiving Section does not go into the significance of the payment order, but merely states that the relevant fees were not paid until after expiry of the relevant period. It is, however, the Board's view that the evidence submitted, namely the statement of grounds which the appellant himself signed, the statutory declaration signed by him, the duplicate of the payment order of 1 February 1985 and the copy of his cheque of 12 February 1985, adequately shows that he gave his bank instructions in due form to transfer a sufficient sum of money not later than 10 days prior to 14 February 1985. Although the payment order was cancelled on 12 February 1985 because the appellant understandably feared that it would not now be executed in time, from the evidence submitted the Board is satisfied that the cheque dated 12 February 1985 was intended to take the place of the payment order. Under the special circumstances of this case, the Board considers the requirements under Article 8(3)(b) RFees to have been met. Accordingly, the period for payment of the filing fee and the search fee under Article 78(2) EPC is deemed to have been observed.

4. Although the appeal is being allowed, the Board does not consider a reimbursement of the appeal fee to be justified, since the appellant failed to provide the Receiving Section with the evidence subsequently submitted in the appeal proceedings. The Receiving Section therefore had no way of knowing that the appellant had instructed his bank as early as 1 February 1985 to transfer a sufficient sum of money.

ORDER

For these reasons, it is decided that:

1. The decision of the Receiving Section dated 3 June 1985 is set aside and the application is remitted to the Receiving Section for continuation of the procedure.

2. The period for payment of the filing and search fees in accordance with Article 78(2) EPC has been observed.