Legal framework
A decision refusing a European patent application is appealable under Article 106 EPC. Under Rule 111(2) EPC, appealable decisions must be reasoned and must be accompanied by a communication drawing attention to the possibility of appeal. The relevant appeal periods under Article 108 EPC run from notification of the decision. The notice of appeal must be filed within two months of notification of the decision, and the statement setting out the grounds of appeal must be filed within four months of notification. The appeal is not deemed to have been filed until the appeal fee has been paid.
For time limits expressed in months, Rule 131 EPC governs calculation. If the final date falls on a day on which the EPO filing offices are not open for receipt of documents, the period is extended under Rule 134(1) EPC to the next day on which the relevant conditions are met.
Statement a)
Statement a) is false.
The refusal was announced at oral proceedings on 4 September 2025, but the appeal period does not run from that date. Under Article 108 EPC, the two-month period for filing the notice of appeal runs from notification of the decision. Here, the written reasoned decision was received on 17 September 2025.
The notice of appeal must therefore be filed, and the appeal fee paid, by 17 November 2025, not by 4 November 2025.
Statement b)
Statement b) is false.
The statement setting out the grounds of appeal does not have to be filed together with the notice of appeal.
Under Article 108 EPC, the notice of appeal is due within two months of notification of the decision, whereas the statement of grounds is due within four months of notification.
Here, the four-month period from 17 September 2025 would nominally expire on 17 January 2026. Since that date is a Saturday, the final date would be extended to Monday 19 January 2026 under Rule 134(1) EPC.
Thus, the grounds of appeal, and any amendments forming part of the appeal case, may be filed after the notice of appeal, provided they are filed within the applicable four-month period.
Statement c)
Statement c) is true.
Under Article 109(1) EPC, if the department whose decision is contested considers the appeal to be admissible and well-founded, it must rectify its decision. This is interlocutory revision.
Since the contested decision was issued by the examining division, the examining division must rectify the refusal if it considers the appeal admissible and well-founded. The exception in Article 109(1) EPC for cases where the appellant is opposed by another party does not normally arise in ex parte examination proceedings.
Statement d)
Statement d) is false.
Reimbursement of the appeal fee is not automatic merely because the board of appeal sets aside the decision of the examining division.
Under Rule 103(1)(a) EPC, full reimbursement is ordered where the board deems the appeal allowable and reimbursement is equitable by reason of a substantial procedural violation. Other partial reimbursements are possible in specific withdrawal situations, but there is no general rule that setting aside the decision automatically leads to reimbursement.
Therefore, the appeal fee is not always reimbursed when the board sets aside the decision.
Exam tip
For appeal questions, always separate the dates:
The oral announcement of the refusal is not the starting point for the appeal periods. The key date is notification of the written reasoned decision. From that date, count two months for the notice of appeal and appeal fee, and four months for the statement of grounds. Fee reimbursement is a separate issue and normally requires the conditions of Rule 103 EPC, not merely success on appeal.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.