Notice from the EPO dated 18 December 2017 concerning the reduced fee for appeal (Article 108 EPC) for an appeal filed by a natural person or an entity referred to in Rule 6(4) EPC
1. By decision of 13 December 2017 (CA/D 17/17) the Administrative Council of the European Patent Organisation amended Article 2(1), item 11, of the Rules relating to Fees so as to introduce a reduced fee for appeal (Article 108 EPC) for appeals filed by natural persons and entities referred to in Rule 6(4) EPC, i.e. small and medium-sized enterprises, non-profit organisations, universities and public research organisations.
2. This amendment will enter into force on 1 April 2018 and will apply to appeals filed on or after that date. The present notice sets out the eligibility criteria for the reduced fee and information about the new procedure.
Declaration of entitlement
3. Appellants wishing to benefit from the reduced fee for appeal must expressly declare that they are a natural person or an entity covered by Rule 6(4) EPC. The declaration shall preferably be worded as follows:
"For the purposes of eligibility for the reduced fee for appeal under Article 108 EPC and Article 2(1), item 11, of the Rules relating to Fees, the undersigned/each of the undersigned declares that he is (select appropriate item)
a natural person. /
a small or medium-sized enterprise as indicated under Rule 6(4) EPC. /
a non-profit organisation, a university or a public research organisation as indicated under Rule 6(4) EPC."
4. This declaration may be given in the notice of appeal or on a separate sheet/letter. Appellants wishing to file their declaration separately can use a pre-printed declaration (Form 1011bis) made available by the EPO. The use of Form 1011bis is, however, not compulsory. In any event, the declaration must be filed at the latest by the time of payment of the reduced fee for appeal.
5. If an appellant consists of a plurality of persons, each one must be a natural person or an entity within the meaning of Rule 6(4) EPC for the reduced fee for appeal to apply.
6. In accordance with Rule 6(5) EPC, for determining whether an entity is entitled to the reduced fee for appeal as a small or medium-sized enterprise within the meaning of Rule 6(4)(a) EPC, Commission recommendation 2003/361/EC of 6 May 2003[ 1 ] applies. Under the recommendation, an enterprise is considered to be any entity engaged in an economic activity, irrespective of its legal form. The category of micro, small and medium-sized enterprises is made up of enterprises which employ fewer than 250 persons, which have an annual turnover not exceeding EUR 50 million and/or an annual balance sheet total not exceeding EUR 43 million and for which no more than 25% of the capital is held directly or indirectly by another company that is not an SME.
7. The further entities listed in Rule 6(4)(c) EPC eligible for the reduced fee for appeal are subject to the following definitions:
(i) "Non-profit organisations" are organisations not allowed by their legal form or statutes, under the relevant law, to be a source of income, profit or other financial gain to their owners, or – if allowed to make a profit – there is a legal or statutory obligation to reinvest the profits made in the interest of the organisation.
(ii) "Universities" are to be understood as "classical" universities, meaning institutions of higher education and research, under the relevant law. However, comparable entities, such as secondary or higher education establishments, will be considered to be universities.
(iii) "Public research organisations" are entities such as universities or research institutes that are organised under public law and, irrespective of how they are financed, have the primary goal of conducting fundamental research, industrial research or experimental development and of disseminating the results by way of teaching, publication or technology transfer. All profits must be reinvested in carrying out these activities, in disseminating the results or in teaching.
8. By declaring that they are an entity under Rule 6(4) EPC, appellants officially confirm that they are either an SME under Rule 6(5) EPC or come under one of the other eligible categories defined in the present notice.
Incorrect, false or missing declaration[ 2 ]
9. For eligibility for the reduced appeal fee, an appellant’s status under Rule 6(4) EPC when filing the notice of appeal is relevant. Changes subsequent to the procedural act of filing the notice of appeal have no retroactive effect on the validity of the appeal fee payment made.
10. In accordance with general practice, a person claiming entitlement to the reduced fee carries the burden of proof that the eligibility criteria have been met. In case of doubt as to the veracity of the declaration given by an appellant, appropriate evidence may be requested.
11. In case of an incorrect, false or missing declaration with payment of the reduced fee the notice of appeal may be deemed not to have been filed or the appeal may be considered inadmissible. The deficiency may not be remediable after expiry of the two-month time limit for filing the notice of appeal.[ 3 ] Appellants claiming entitlement to the reduced fee for appeal are therefore strongly recommended to ensure that when filing the notice of appeal the eligibility criteria are fulfilled and the declaration is duly made.
Annex: European Commission Recommendation 2003/361/EC of 6 May 2003,
[ 1 ] Commission recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, published in the Official Journal of the European Union L 124, p. 36, of 20 May 2003 and annexed to this notice.
[ 2 ] The following information concerns in particular the practice of the departments of the instance in considering whether an appeal is admissible in the context of interlocutory revision (Article 109(1), first sentence, EPC).