| European Case Law Identifier: | ECLI:EP:BA:1991:T060489.19910315 | ||||||||
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| Date of decision: | 15 March 1991 | ||||||||
| Case number: | T 0604/89 | ||||||||
| Decision of the Enlarged Board of Appeal: | G 0002/91 | ||||||||
| Application number: | 81201316.7 | ||||||||
| IPC class: | G01F 1/58 | ||||||||
| Language of proceedings: | DE | ||||||||
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| Title of application: | - | ||||||||
| Applicant name: | Krohne | ||||||||
| Opponent name: | Coors, Morgan Matroc, Danfoss, Rosemount | ||||||||
| Board: | 3.4.02 | ||||||||
| Headnote: | The following point of law is referred to the Enlarged Board of Appeal for decision: "Where several parties to proceedings before the EPO have filed appeals and paid the corresponding appeal fees, is the EPO obliged to refund appeal fees to all appellants except the first, even if the requirements of Rule 67 EPC have not been met?" | ||||||||
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| Keywords: | Reimbursement of appeal fees Referral to the Enlarged Board of Appeal |
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Summary of Facts and Submissions
I. On the question of possible reimbursement of all those appeal fees paid after the first appeal fee had been received, the Board of Appeal, in its decision dated 15 November 1990, decided to continue proceedings in written form separately from the decision taken in the matter.
II. The grounds given for continuing the proceedings in written form were that Board of Appeal 3.3.1, in its decision T 73/88 dated 7 November 1989, had ruled, contrary to previous Board practice, that the appeal fee which had been paid in respect of the later-filed of two appeals should be refunded. However, the Board concerned with the present case doubted whether the EPC provided a basis for proceeding any differently to previous Board practice. So as not to delay a decision in the matter, the Board decided to continue proceedings in the present case in written form.
III. The Board informed the parties in a communication that in view of such conflicting case law it proposed to refer the matter to the Enlarged Board of Appeal.
IV. Of the parties, only the Appellant and Opponent (6) commented on this communication, requesting that the appeal fee be reimbursed.
Reasons for the Decision
1. In the present case four parties (opponents) have filed appeals, and each of the appellants has paid the corresponding appeal fee.
2. In accordance with previous Board practice, payment of all these four fees would be regarded as legally justified, and also as serving the appellants' interests, particularly if the first appellant to file an opposition or appeal were to withdraw it or if the appeal were inadmissible. A Board would not order reimbursement of any of these fees, as the case provided for in Rule 67 EPC does not apply.
3. In contrast, Board 3.3.1 decided in case T 73/88 that all appeal fees except the first fee paid should be refunded. The reasoning behind this decision was that the fees paid subsequently had been paid to no purpose, because under Article 107 EPC all parties to the proceedings before the first instance automatically became parties to the appeal proceedings as soon as an appeal was filed.
4. Two conflicting examples of case law are therefore before the Board of Appeal. The Board considers in the present case that a decision of the Enlarged Board of Appeal is required in order to ensure uniform application of the law (Article 112(1)(a) EPC).
ORDER
For these reasons it is decided that: The following point of law is referred to the Enlarged Board of Appeal for decision:
"Where several parties to proceedings before the EPO have filed appeals and paid the corresponding appeal fees, is the EPO obliged to refund appeal fees to all appellants except the first, even if the requirements of Rule 67 EPC have not been met?"
