T 0152/82 (Debit Order I) of 5.9.1983

Summary of Facts and Submissions

I. The European patent bearing the publication number 0000159 (Application No. 78100177.1) was revoked by decision of the Opposition Division of the European Patent Office dated 4 June 1982.

II. The patent proprietor lodged an appeal against this decision on 4 August 1982 and filed a Statement of Grounds on 15 September 1982. In the notice of appeal the patent proprietor made the following request: "Please debit the appeal fee (Code 11) of DM 550 to our deposit account NO. ...". At the time, the appeal fee had already been increased to DM 630.

III. The appellant became aware of this fact after the time limit for appeal had expired. On 9 September 1982 he issued a further debit order in respect of the difference, i.e. DM 80 and requested that the appeal fee be deemed to have been paid in full in due time. This was possible in law by applying either Rule 88 EPC (Correction of errors) or Article 9(1) of the Rules relating to Fees (small amounts lacking). In the alternative the appellant also applied for re-establishment of rights and paid the necessary fee. In a letter received on 6 November 1982 he requested reimbursement of the fee, as a recheck had shown that the two-month period prescribed by Article 122(2), first sentence, EPC for filing the application had not been observed.

IV. The opponent, when consulted, raised no objection to the appeal being regarded as admissible and agreed that the question of admissibility be decided on the merits in written proceedings.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC only if the appeal fee is to be regarded as paid in full in due time or if the amount lacking - DM 80 - can be overlooked pursuant to Article 9(1), fourth sentence, of the Rules relating to Fees.

2. As Article 110(1) and Rule 65 EPC show, the Board of Appeal must examine whether the appeal is admissible before beginning with the substantive examination. Where an appeal is inadmissible, the relevant ruling is given in a final decision but when it is admissible, the ruling may be given in an interlocutory decision establishing the position. As no binding decision on admissibility is taken with the mere transition from examination for admissibility to substantive examination, establishing admissibility in an interlocutory decision may be justified in certain cases. An interlocutory decision may also be appropriate, as in the present case, because the points of law concerning admissibility are of general significance and require a speedy decision.

3. In answering the question whether payment was validly effected by means of the debit order for DM 550 instead of DM 630 received on 15 August 1982, a number of legal points have to be considered, in particular the provisions regarding small amounts lacking in Article 9(1), fourth sentence, of the Rules relating to Fees and those regarding the correction of errors in Rule 88 EPC as well as general legal principles concerning the interpretation of declarations of intent in conjunction with the "Arrangements for deposit accounts" (Official Journal of the EPO 1982, pp. 15 to 18). Re-establishment of rights pursuant to Article 122 EPC is also in principle possible. The very number of these possibilities already suggests that some of these legal remedies can only be considered at a secondary level, i.e. if a straightforward solution is not possible.

4. One way of remedying the present deficiency quite simply is to assess the substance of the debit order, i.e. the intention expressed therein.This intention can only be taken to mean that the appellant wishes the valid amount of the appeal fee to be debited. The debit order can therefore be carried out in the clearly intended manner by the EPO itself without any further enquiry being necessary, provided that the said "Arrangements for deposit accounts" do not preclude such a step.

5. The "Arrangements for deposit accounts" represent legal conditions, issued by the President of the EPO pursuant to Article 5(2) of the Rules relating to Fees, for the payment of fees by means of a deposit account. In opening an account the account holder agrees to these conditions.

6. Although the current version of the "Arrangements for deposit accounts" requires that the debit order be in respect of one or more specific fees (6.1 of the said Arrangements) and contain "the particulars necessary to identify the purpose of the payment" (6.3 thereof), it does not stipulate that the amount - or indeed the correct amount - has to be given at all. Nor is 6.1, which in the German version states that the account may be debited "nur mit Beträgen" (only with amounts), to be taken to mean that there is an obligation to give the amount. As is rather clearer in the French and English versions, 6.1 lays down the purpose of the account. Debit orders differ from other types of payment inter alia in that, although the person giving the order must specify clearly the precise payment obligation he wishes to fulfil, he does not necessarily have to specify the amount.

7. Since the "Arrangements for deposit accounts" contain no obligation to specify the amount, the EPO must execute a debit order in accordance with what is plainly the substance of that order, even though the amount specified therein is incorrect. As the intention is clear, it is not even necessary to consult the account holder. The application of Rule 88 EPC, which is possible per se but requires a certain procedure (drawing attention to the error, request for correction and decision), is superfluous in such a case because, unlike cases covered by Article 7(2) of the Rules relating to Fees, the purpose of the payment is immediately evident here and hence the correct amount of the fee can be established. The EPO is therefore authorised to execute a debit order from which the purpose of the payment is clear even when the amount of the fee in question is not indicated or is incorrectly indicated.

8. Establishing that a statement is clear, while not an interpretation of intention (otherwise the statement would not be clear), is nonetheless an interpretative process. Under certain circumstances the stage reached in the proceedings and the content of the file need to be taken into consideration. It is possible that the clarity of intention is not evident from the debit order alone but only with the aid of the file. It may well be that only when the stage reached in the proceedings is taken into consideration will it become absolutely clear that what is intended beyond any doubt is not, say, the opposition fee but the fee for appeal, not the third renewal fee but the fourth. It will not therefore always be possible for the Cash Office to establish what is indubitably intended. This may become apparent only when a department familiar with the stage reached in the proceedings comes, say, to examine for admissibility or to carry out a check where a legal consequence ensues. Such a department, realising what was clearly intended, would also be authorised, without further reference to the account holder, to have the debit order carried out, or the outstanding amount debited, in accordance with what was clearly intended. Since what is at issue here is establishing something clear and not a decision (i.e. choice of possible alternatives), it is sufficient for the department concerned to have authority to examine.

9. As a result of a deficiency in a debit order it may therefore be that the correct debit (or debit of any shortfall as the case may be) will be delayed and this gives rise to the question of when, in view of the delayed or additional debit, full payment is deemed to be made. Subject to the following conditions, the ruling date of payment would be the date of receipt of the debit order which, although deficient, was deemed to be clear from the instructions given. The question of whether there is a sufficient amount in the account to cover the debit is not to be determined by reference to the date of receipt (cf. 6.4 of the Arrangements for deposit accounts). Between receiving the deficient debit order and establishing what is clearly intended a lengthy period of time may elapse, during which other debits are made. From the legal point of view the case should be treated in the same way as the perfectly plausible case where a debit order, correct in every way, is not carried out for some time through an oversight on the part of the Office or where, for the same debit order, an insufficient amount is charged to the account through an error on the part of the Cash Office (e.g. transposition of digits). In such cases, what matters is that on the day on which the delayed or additional debit is first attempted, there is a sufficient amount in the account to cover the debit.

10. In the present case, steps had already been taken by the appellant and account holder to debit the outstanding amount by means of a further debit order received after expiry of the time limit for appeal. As the original debit order was clear despite the incorrect fee amount indicated in it, the only possible conclusion is that the appellant's payment is to be regarded as made on time.

11. The request by the appellant for reimbursement of the fee for re-establishment of rights applied for merely in the alternative is to be regarded as withdrawal of the application for re-establishment. The withdrawal of an application for re-establishment, even if filed in the alternative, does not per se justify reimbursement of the fee for re-establishment. However, reimbursement is justified because that application was filed as a precaution should the main claim for relief fail. It is not the withdrawal of the application for re-establishment that justifies reimbursement of the fee but the fact that it would not have needed to be considered.

ORDER

For these reasons, it is decided that:

1. The appeal is found admissible.

2. Reimbursement of the fee for re-establishment of rights is ordered.