Decision G01/02 of the EPO Enlarged Board of Appeal
26.02.2003
On 22 January 2003, the EPO Enlarged Board of Appeal disclosed a decision G 1/02 relative to the competence and the nature of the “decisions” of the formalities officers
On 22 January 2003, the EPO Enlarged Board of Appeal disclosed a decision
G 1/02 relative to the competence and the nature of the “decisions” of the formalities officers described by the Article 9(3) CBE, in particular concerning the duties entrusted to the formalities officers according to the Official Statement of the Vice-President in charge of the DG2 of 28 April 1999.The President of the European Patent Office noticed two diverging decisions passed by the Boards of Appeal.Decision T 295/01: the formalities officer had notified to the opponent that the opposition tax was paid out of the delay and that he took a decision considering that the opposition was deemed as not filed.The Court of Appeal 3.3.4 considered that the formalities officer was not competent and declared the decision invalid.Decision T1062/99: the formalities officer indicated by letter that an opposition was inadmissible to the opponent who did not pay the opposition fee within the periodThe Court of Appeal 3.2.1 considered that this letter constituted a decision and confirmed this decision.Considering these two diverging decision, the President of the European Patent Office asked the following to the Enlarged Board of Appeal referring to the Statement of 28 April 1999.1. Does the stipulation under point 6 of this notice contravene provisions of a higher rank?2. Does the stipulation under point 4 of this notice contravene provisions of a higher rank?The point 6 of the notice foresees the entrustment the formalities officers with ”decisions in ex parte proceedings on the inadmissibility of the opposition and the intervention of the assumed infringer with the exception of the cases provided for in Rule 55(c)EPC.”Under point 4 of the notice, the formalities officers are entrusted to establish ”communications under Rule 69(1)and decisions, and informing the person requesting the decision, under Rule 69(2)EPC ”.It is remembered that:- If the opposition fee is not paid within the opposition period, then the opposition is deemed inadmissible and the fee is refunded.- If the opposition act is not arrived to the EPO within the opposition period, then the opposition is deemed inadmissible and the fee is not refundedBoth cases are of the duties of the formalities officers.The Enlarged Board of Appeal particularly reminded the decision G 2/90 (according to this decision, the Legal Board of Appeal is incompetent on a decision from the formalities officers r a patent on the basis of Article 102(5) CBE (no production of the translation of the modified claims after opposition)), G 8/91 (according to these decisions the opposition procedure is purely administrative and has no character.The Enlarged Board of Appeal concluded that the points 4 and 6 of the Notice are valid.It is also the duty of the formalities officer to decide concerning:- A decision deemed as not filed- An inadmissible decision
