According to the EPO’s website, the EPO’s Boards of Appeal currently receive about 2,500 new cases per year, but settle only about 2,000 cases. It follows that the already existing backlog continues to increase. Measures to clear the backlog will now be adopted along with the upcoming changes of the EPC Rules which will enter into force on 1 April 2014. Therefore, there will be a disincentive to file an appeal under the EPC against a decision of the first instance of the EPO, and there will be further motivation to withdraw an already filed appeal.
The disincentive is a simple one: a significantly increased appeal fee. Currently, the fee for appeal is € 1240. This fee will rise to € 1860, i.e. by 50%.
The reasons to withdraw an already lodged appeal are also finance-driven. Currently, the fee for appeal is reimbursed in full if the appeal is withdrawn before the filing of the grounds for appeal and before the period for filing such grounds has expired. This procedural possibility for the appellant will remain, but an appellant will furthermore be entitled to a reimbursement of 50% of the fee for appeal
- if a date for oral proceedings has been set, at least four weeks before that date;
- if no date for oral proceedings has been set, and the Board of Appeal has issued a communication inviting the appellant to file observations, before expiry of the period set by the Board for filing observations;
- in all other cases, before the decision is issued.
These new rules will also apply to appeals which are already pending before the EPO’s Boards of Appeal.
It remains to be seen whether the new financial provisions will help reduce the number of pending and newly filed appeals. In any event, it is prudent to focus even more on a positive outcome of the procedure before the EPO’s first instance.