Inadmissible appeal vs Appeal deemed not to have been filed – what is the distinction?

The European Patent Office (EPO) Enlarged Board of Appeal (EBA) recently issued its decision in respect of case G1/18.

The question before the EBA was:

When filing an appeal, does failure to observe the two-month time limit set out in Article 108 of the European Patent Convention (EPC), through late payment of the appeal fee and/or belated filing of the notice of appeal, result in the appeal being treated as not filed or as inadmissible?

The decision was in response to a referral by the President of the EPO, who, under Article 112(1)(b) EPC, has the power to refer a point of law to the EBA when two (lower) boards of appeal have given differing decisions on corresponding legal questions.

The referred question is relevant because if an appeal is deemed inadmissible a reimbursement of any appeal fee already paid would not ensue since there are no legal grounds to permit a refund, whereas if an appeal is instead deemed not to have been filed the payment of any appeal fee would consequently be without a legal basis, since no appeal exists, and therefore the fee must be refunded.  The point of law in issue was which of the above determinations should be applied in a situation where an applicant fails to observe the two-month time limit under Article 108 EPC.

The EBA answered the referred question as follows:

  1. An appeal is deemed not to have been filed in the following cases:

(a) where notice of appeal was filed within the two‑month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two‑month time limit;

(b) where notice of appeal was filed after expiry of the two‑month time limit prescribed in Article 108, first sentence, EPC AND the appeal fee was paid after expiry of that two‑month time limit;

(c) where the appeal fee was paid within the two‑month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND notice of appeal was filed after expiry of that two‑month time limit.

  1. In the cases referred to in answers 1(a) to (c), reimbursement of the appeal fee is to be ordered ex officio.
  2. Where the appeal fee was paid within or after the two‑month time limit prescribed in Article 108, first sentence, EPC for filing notice of appeal AND no notice of appeal was filed at all, the appeal fee is to be reimbursed.

Thus, the EBA has taken the view that “the consequence in law of a failure to observe the two‑month time limit under Article 108 EPC is that the appeal is deemed not to have been filed, and not that it is to be rejected as inadmissible, and that, accordingly, the appeal fee will be reimbursed in such cases”.

In other words, where an appeal fee is paid late and/or a notice of appeal is filed late, appellants now have more certainly as to the state of their appeal and the fate of any fees paid – the appeal will be deemed not to have been filed and a refund will be issued.