As to the question which department is competent to decide on the request for reimbursement in cases of interlocutory revision, the legal situation defined by G 3/03 (OJ 2005, 344) and J 32/95 (OJ 1999, 733) is now enshrined in R. 103(3) EPC (see T 625/09, T 206/10). Decision J 32/95 held that if the department of first instance considered the request for reimbursement of the appeal fee not to be well-founded in the event of interlocutory revision, it had to remit the request to the board of appeal for a decision. In G 3/03 the Enlarged Board of Appeal held that in the event of interlocutory revision under Art. 109(1) EPC 1973, the department of first instance whose decision had been appealed was not competent to refuse a request from the appellant for reimbursement of the appeal fee. The board of appeal which would have been competent under Art. 21 EPC 1973 to deal with the substantive issues of the appeal if no interlocutory revision had been granted was competent to decide on the request. G 3/03 was, for example, applied in T 1379/05, T 1315/04, T 245/05, T 1863/07 and T 2352/13.
In T 21/02 an appeal had been fully dealt with by interlocutory revision by the department of first instance and was thus no longer pending when a request for reimbursement of the appeal fee was submitted. The board held that the facts of the case differed from those underlying decisions G 3/03 and J 32/95 and that in the case before it, the request had been submitted in the absence of a pending appeal and hence could not constitute an ancillary issue to be dealt with in appeal proceedings. The board was thus not empowered to decide on the request for reimbursement of the appeal fee (see also T 1703/12, T 2134/12, T 2008/14).
The board in T 242/05 added that once interlocutory revision had been granted, the appeal was res judicata. In the absence of a pending appeal, any request for reimbursement of the appeal fee filed after the decision to grant interlocutory revision will be considered inadmissible, regardless of whether the decision was taken by the examining division or the board of appeal as the body competent to consider the appeal (see also T 70/08). The board also commented that the first-instance department should decide such matters itself; there was no point referring them to the boards of appeal.
In T 893/13 the board disagreed with T 21/02 and T 242/05, in particular with the finding that non-reimbursement of the appeal fee by the examining division in the case of interlocutory revision must be equated with the situation in which the board of appeal has refused a corresponding request. Since the examining division was not competent to decide that the appeal fee was not to be reimbursed, an interlocutory revision without an order for reimbursement could not be construed as a decision not to reimburse. A request for reimbursement of the appeal fee could be validly filed even after interlocutory revision, since R. 103 EPC entrusted the boards with the decision on "all other ... matters of reimbursement" based on only two conditions: that the decision was rectified and that the appeal fee was not reimbursed by the examining division.
Date retrieved: 30 December 2018