T 0354/01 (Antisense oligonucleotides/BAYLOR COLLEGE) of 27.4.2001

Summary of Facts and Submissions

I. On November 2000, the applicant filed a notice of appeal against the decision of the Examining Division posted on 6 September 2000, by which the European Patent Application No. 91 307 750.9 was refused. The fee for the appeal was paid at the same day.

II. By letter received on 16 January 2001, the applicants withdrew the appeal and further stated that they "consider that the applicants are entitled to a refund of the appeal fee since no processing of this appeal had yet commenced." No grounds for the appeal were submitted.

Reasons for the Decision

1. The words "the applicants are entitled to a refund" used by the appellants (see above Section II) express in the boards view a request to order the refund of the appeal fees.

2. The present appeal was withdrawn from consideration by the board of appeal in respect of admissibility and allowability, but the board of appeal still has to take a decision on the issue of this request in the exercise of its inherent power to decide any request made to it which arises out of the appeal (T 41/82 OJ EPO 1982, 256 and J 12/86 OJ EPO 1988, 083).

3. Reimbursement can be ordered in a case in which no notice of appeal is filed within the time limit prescribed by Article 108 EPC because the appeal has never existed.

4. In the present case in due time the notice of appeal was filed and the appeal fees paid. The consequence of the failure to file a statement of grounds of appeal is not that the appeal is regarded as without existence. Rather under Rule 65 EPC the appeal would have to be rejected as inadmissible. Neither has the withdrawal of the appeal the effect that the appeal has to be regarded as without existence, but that the appeal is withdrawn from consideration by the board of appeal and therefore cannot be examined either for admissibility or for allowability. Thus, the appeal existed until it was withdrawn. This leaves no room for allowing the request on the basis mentioned under point 2 above.

5. According to Rule 67 EPC appeal fees shall be reimbursed either in the case of interlocutory revision (Article 109 EPC), or if the board of appeal deems an appeal to be allowable, if such reimbursement is equitable by reason of a substantial procedural violation.

6. Interlocutary revision did not take place in the present case so that this alternative of Rule 67 EPC can not serve as a basis for allowing the appellants' request.

7. Equally, the further requirement of Rule 67 EPC that the appeal has to be allowable and a substantial procedural violation has occurred are obviously not fulfilled.

8. A reason given by the appellants in their letter of 16 January 2001 for the allowability of their request to refund the appeal fees was that "no processing of this appeal had yet commenced" (see section II above).

By this the appellants seem to imply that in such circumstances the possibility was not excluded that the appeal fees were to be refunded without an express provision in the EPC.

9. This board agrees with the position taken in decision T 41/82 (loc. cit., point 4) that 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.

Order

For these reasons it is decided that:

The request for reimbursement of the appeal fee made in the appellants' letter dated 16 January 2001 is rejected.