tag:blogger.com,1999:blog-5574479.post6135235798471156478..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: The intractable question of "inadmissible" or "late filed" appeals - G1/18Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-5574479.post-41827272650415684432019-01-14T09:06:12.221+00:002019-01-14T09:06:12.221+00:00Re Cees Mulder’s comment:
It is difficult to imagi...Re Cees Mulder’s comment:<br />It is difficult to imagine that the EBA holds that the referral is inadmissible considering that decisions T 2017/12 and T 1553/13 diverge from the consistent practice of the Boards of Appeal as set out in the Case Law Book at IV.E.8.12 a). Although the decisions have not yet been followed by other decisions, the two referrals caused considerable public awareness and legal uncertainty. <br />Furthermore, these decisions call into question a general principle of the European patent system, i.e. the legal consequence that a request is deemed not to be filed if the corresponding fee is not paid. This is based on the consideration that it is not justified to retain a fee paid at a point in time at which a procedure is no longer pending resulting from the loss of rights due to the non-payment. This mechanism has been laid down in Rule 112 EPC providing for a simple mechanism to close the file in cases in which a substantive decision is not to be expected. For reasons of efficiency, the registries of the Boards of Appeal are entrusted with the procedure under Rule 112 EPC. Considering the workload of the Boards of Appeal, it seems counterproductive to burden the full Board with a decision on inadmissibility if the job can be done by a communication of the registry pursuant to Rule 112 (1). The rights of the appellant are safeguarded by the opportunity to apply for a decision pursuant to Rule 112 (2) EPC, a situation hardly ever arising. <br />Re the comment slap dash administration should not be encouraged:<br />The late paid appeal fee causes the same administrative effort as the non-payment of the fee. Would it make sense to invite the appellant who has not paid the fee to pay it late in order to treat both appellants in the same way? <br />The Convention watchdognoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4557295976107084022019-01-13T10:45:29.465+00:002019-01-13T10:45:29.465+00:00If an appellant files the notice of appeal in due ...If an appellant files the notice of appeal in due time but fails to pay the fee in due time, one could consider that he wished his appeal to be dealt with by the Boards of Appeal. If he is not capable of paying the fee in due time, but hopes to get left of the hook, why should he then get his appeal fee back? <br /><br />If nowadays a company, or a firm of representatives with the all the means available for controlling and checking time limits, is not capable of paying a fee in due time, and pays it late, then they cannot be helped and does not deserve to get its money back. <br /><br />If an appellant fails to abide by the time limit of four months to file the grounds of opposition, the appeal becomes inadmissible and the fee is also not reimbursed, so why should the fee be reimbursed if it has been late filed? <br /><br />Another possibility could be in analogy with the examination fee: why not consider the possibility of late payment within a month after the time limit under Art 108, with the classical 50% surcharge. <br /><br />I like Cees Mulder’s considerations, and I would welcome if the EBA could find a way to act as in G 3/08.Slap dash administration should not be encouragednoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17780230396474454302019-01-12T09:48:43.833+00:002019-01-12T09:48:43.833+00:00There is another hurdle the Enlarged Board of Appe...There is another hurdle the Enlarged Board of Appeal (EBoA) has to take before it can deal with the referred question. <br /><br />Art. 112(1)(b) EPC stipulates: ”the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.” <br /><br />The EBoA always first had to investigate the condition of “different decisions” (French: “décisions divergentes”; German: “voneinander abweichende Entscheidungen”). In the case at hand, it would not be too difficult to decide that there are no “different decisions”. In that case, the EBoA may choose not answer the referred question. In G 3/08 (Patentability of programs for computers) the EBoA came to the conclusion that the referral by the President was not based on “different decisions” but nevertheless answered the referred question. However, there is no obligation to do so. In G 3/08, the EBoA came to the conclusion (based on Art. 31 Vienna Concention) that the notion “different decisions” has to be understood restrictively in the sense of “conflicting decisions”.<br /><br />The EBoA in view of the beloved person filing the referral at the end of his reign, may find arguments not to answer the question. Cees Mulderhttps://www.blogger.com/profile/01141973337404792304noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-29381221031360575962019-01-11T14:07:57.923+00:002019-01-11T14:07:57.923+00:00Just wondering how much time and money this will c...Just wondering how much time and money this will cost to decide, as far as I understand it, only the question of whether DG3 should keep the appeal fee or not when an entity messes up their appeal filing?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78407985456223467902019-01-11T11:23:50.268+00:002019-01-11T11:23:50.268+00:00To Anon - thank you for your comment, you are corr...To Anon - thank you for your comment, you are correct and I have updated accordingly.Rose Hugheshttps://www.blogger.com/profile/04232611463781544102noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-71779259566133367882019-01-11T11:08:18.275+00:002019-01-11T11:08:18.275+00:00I interpret the brief of Mr. Pavón Mayo as the exa...I interpret the brief of Mr. Pavón Mayo as the exact opposite, namely that a timely filing of the notice and a late payment results in the appeal being inadmissible and, hence, no refund of the appeal fee. See e.g. last paragraph of p. 2: 'The current practice that a late filed appeal (...) renders the appeal "deemed not filed" instead of inadmissible is thus questionable'.<br /><br />Actually, I find his arguments very interesting and the first compelling argument that I read to support that the appeal should be inadmissible. Basically, I understand his brief as that "shall not be deemed to have been filed" only means that the effective date of the filing of the notice is postponed until the appeal fee has been paid. It includes a rather nice analogy with the request for examination, for which Art. 94 provides the same type of wording.Anonymousnoreply@blogger.com