| European Case Law Identifier: | ECLI:EP:BA:1983:T013082.19830826 | ||||||||
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| Date of decision: | 26 August 1983 | ||||||||
| Case number: | T 0130/82 | ||||||||
| Application number: | 79302765.7 | ||||||||
| IPC class: | - | ||||||||
| Language of proceedings: | EN | ||||||||
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| Title of application: | - | ||||||||
| Applicant name: | Bell & Howell | ||||||||
| Opponent name: | - | ||||||||
| Board: | 3.2.01 | ||||||||
| Headnote: | A notice of appeal can be considered as having been filed within the time limit prescribed by Article 108 EPC, notwithstanding that the full amount of the appeal fee has not been paid within that period, if the amount unpaid can fairly be considered to be small, within the meaning of Article 9(1) Rules relating to Fees, and if the circumstances justify overlooking the amount lacking. | ||||||||
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| Keywords: | Appeal fee - insufficiency of amount paid | ||||||||
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Summary of Facts and Submissions
I. European patent application No. 79 302 765.7, filed on 3 December 1979, published under No. 0 012 554 and claiming the priority of a previous application of 6 December 1978, was refused by the decision of the Examining Division dated 19 April 1982. ...
II. In its decision, the Examining Division held that Claim 1 was not allowable for lack of support by the description (Article 84 EPC).
III. The appellants lodged an appeal against this decision on 12 June 1982 and relying on inaccurate information in a table of fees published by the EPO, they had paid £ 141 as the fee for appeal on 10 June 1982. Having been informed that the correct amount of the appeal fee had been £ 157 since 1 November 1981 ( OJ 10/1981, 471), the appellants made good the deficit on 1 July 1982. The statement setting out the Grounds of Appeal was reveived on 20 August 1982. ....
Reasons for the Decision
1. The appeal is considered to comply with Articles 106 to 108 and Rule 64 EPC and, therefore, to be admissible, notwithstanding the fact that the full amount of the appeal fee was not paid until after the time for appeal had elapsed. In principle, a time limit for payment of a fee shall be deemed to have been observed only if the full amount of the fee has been paid in due time (Article 9(1), Rules relating to Fees). However, that Article permits the European Patent Office "where this is considered justified", to overlook any small amounts lacking, without prejudice to the rights of the person making the payment. The amount of the underpayment in the present case was £ 16 in relation to a total fee of £ 157. This may fairly be considered to be a small amount within the meaning of the Article and, since the reason for the underpayment was reliance in good faith on inaccurate information published by the Office, it is considered justified to overlook the amount lacking at the date of expiry of the time limit for paying the appeal fee and filing the appeal.
2. The reason given for the refusal of the application was that Claim 1, submitted on 8 February 1982, was not supported by the description. It is, therefore, necessary to examine whether or not new Claim 1 meets this requirement of the Convention. ...
4. The Examining Division has not yet examined whether or not a system according to Claim 1 is patentable. Under these circumstances, the Board deems it not appropriate to decide this issue, but makes use of the power, given to it by Article 111(1) EPC, to remit the case to the Examining Division for further prosecution.
5. The appellants have shown no cause for the requested reimbursement of appeal fee. The Board cannot find a substantial procedural violation by reason of which the reimbursement would be equitable.
ORDER
For these reasons, it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the Examining Division for further prosecution.
3. The request to reimburse the appeal fee is dismissed.
