1. By decision of 28 May 2020 (OJ EPO 2020, A70) the Administrative Council of the European Patent Organisation has temporarily suspended the application of Rule 51(2) EPC with respect to the additional fee for belated payment of a renewal fee for a European patent application, as referred to in Article 2(1), item 5, of the Rules relating to Fees (RFees). The present notice provides information on the applicability of this measure (hereinafter referred to as "the measure") which enters into force on 1 June 2020. The measure is designed to help ease the financial burden faced by applicants as a result of the COVID-19 pandemic by allowing them to delay the payment of renewal fees by up to three months without incurring an additional fee.

Temporary suspension of the application of Rule 51(2) EPC with respect to the additional fee (Article 2(1), item 5, RFees)

2. As a general rule, renewal fees for a European patent application in respect of the coming year are due on the last day of the month containing the anniversary of the date of filing of the European patent application (Rule 51(1) EPC). If the renewal fee has not been validly paid on or before the due date, it may still be validly paid within six months of that date, provided that an additional fee is paid within this period (Rule 51(2) EPC). The amount of the additional fee is 50% of the belated renewal fee.

3. As of 1 June 2020 until 31 August 2020, inclusive, the application of Rule 51(2) EPC with respect to the additional fee is suspended. This measure follows the extension of periods adopted by the EPO under Rule 134(2) EPC and published in the notice from the EPO dated 1 May 2020 (OJ EPO 2020, A60), which also applies to periods for paying fees, including renewal fees as per the notice from the EPO dated 30 March 2020 (OJ EPO 2020, A38), in accordance with which the due date for renewal fees falling due on or after 15 March 2020 is deferred to 2 June 2020.

Applicability of the measure

4. Consequently, any renewal fee falling due on or after 15 March 2020 can be validly paid by 31 August 2020 with no additional fee.

5. The measure applies to renewal fees due for European patent applications (Rule 51(1) EPC), renewal fees payable when filing divisional applications (Rule 51(3) EPC), the third-year renewal fee for Euro-PCT applications (Rule 159(1)(g) EPC), and renewal fees payable in the event of restoration (Rule 51(4) EPC) or if the Enlarged Board of Appeal reopens proceedings before the Boards of Appeal under Article 112a(5) EPC (Rule 51(5) EPC). The present notice elaborates on the most common types of situation involving renewal fee payments.

6. For renewal fees under Rule 51(1) EPC, the measure allows renewal fees due on 31 March 2020, 30 April 2020, 31 May 2020, 30 June 2020 and 31 July 2020 to be validly paid by 31 August 2020 without an additional fee. If the renewal fee is not paid by that date at the latest, it can still be validly paid with an additional fee before the expiry of the period under Rule 51(2) EPC. For instance, a renewal fee due on 31 March 2020 can still be validly paid after 31 August 2020, but only with an additional fee and provided the payment is made by 30 September 2020. Neither the present measure nor the extension of periods under Rule 134(2) EPC affect the start of the six-month period under Rule 51(2) EPC (see Guidelines for examination in the EPO, A-X, 5.2.4).

7. The measure also applies to renewal fees due for a divisional application filed on or after 15 March 2020, as the filing date is also the due date for the payment of renewal fees under Rule 51(3) EPC, first sentence. For those applications, renewal fees can be paid without the additional fee by 31 August 2020, even where they are not paid within four months from their filing date. If the six-month period under Rule 51(2) EPC calculated from the filing date expires after 31 August 2020, and if the payment is not made by that date at the latest, the renewal fees can still be validly paid with an additional fee before the expiry of the period under Rule 51(2) EPC.

Example:

Date on which a European divisional application is filed:
24 March 2020

Due date for renewal fees:
24 March 2020

Expiry of the four-month period under Rule 51(3) EPC:
24 July 2020

Expiry of the period for paying the renewal fees without additional fee:
31 August 2020

Expiry of the period for paying the renewal fees with additional fee:
24 September 2020

8. The measure also applies to the payment of the third-year renewal fee due for Euro-PCT applications entering the European phase on or after 15 March 2020 and for which the due date under Rule 51(1) EPC falls before the expiry of the 31-month period under Rule 159(1) EPC. In this case as well, the renewal fee can still be validly paid with an additional fee before the expiry of the period under Rule 51(2) EPC. For instance, if a third-year renewal fee for a Euro-PCT application due on 10 June 2020 is not paid by 31 August 2020, it can still be validly paid – but only with an additional fee – by 10 December 2020.

9. Renewal fees with a due date before 15 March 2020 do not benefit from the measure. They may still be paid within the six-month period with the additional fee under Rule 51(2) EPC. For instance, a renewal fee due on 29 February 2020 may be validly paid by 31 August 2020 with the additional fee.

10. Users of the automatic debiting procedure are informed that automatic debit orders will continue to be executed in accordance with the rules defined in Point 5 Annex A.1 to the ADA – Arrangements for the automatic debiting procedure (AAD) (supplementary publication 4, OJ EPO 2019, 22). Where a deposit account contains insufficient funds to cover the payments arising, renewal fees with a due date on or after 15 March 2020 will be deemed to have been paid in due time if payments to replenish the account are entered in the EPO bank account by 31 August 2020 at the latest. In such circumstances, the EPO will ensure that the correct amount is debited, i.e. the amount valid on the original due date. No additional fee will be debited.

11. For renewal fees due between 15 March and 31 March 2020, the amount in force on that date applies (see point 7 of the notice from the EPO dated 30 March 2020, OJ EPO 2020, A38) and, under the present measure, can be validly paid at this same amount by 31 August 2020.