J 0026/80 (Date on which payment is made) of 13.11.1981

Summary of Facts and Submissions

I. On 24 January 1980 the appellant filed European patent application No.80850011.0 claiming a priority date of 5 February 1979. In accordance with Rule 85a EPC, the last date for payment of the application, search and designation fees (with a surcharge) was 25 April 1980, a Friday. On that day, the appellant paid the full amount of these fees into a bank which held an account of the European Patent Organisation. On the same day, the bank notified the EPO by telex that it would credit the EPO with the amount paid, giving the value date of 28 April 1980 (a Monday), and identifying the appellant by name and the European patent application by its number. On 6 May 1980, the EPO received a payment advice form from the bank marked “confirmation of telex”. The relevant Statement of Account, received by the EPO on 13 May 1980 gave the date of crediting to the account, as well as the value date, as 28 April 1980.

II. By a communication dated 4 June 1980, the Receiving Section notified the appellant, in accordance with Rule 69(1) EPC, that the application must be deemed to have been withdrawn, on the grounds that the fees had not been paid in due time. At the appellant’s request, a decision was issued on 7 August 1980, in accordance with Rule 69(2) EPC, in which it was held that the European patent application was deemed to have been withdrawn, as the fees had not been entered in the bank account until 28 April 1980. This date was the date on which payment must be considered as having been made, in accordance with Article 8(1)(a) Rules relating to Fees, and therefore, payment was too late.

III. On 2 October 1980, the appellant lodged a notice of appeal against this decision, together with a statement of grounds. The appeal fee was duly paid. The appellant contended, in reliance on the telexed advice of payment by the bank on 25 April 1980 that that date should be regarded as the date of payment and, consequently that the payment had been made in due time. He requested that the decision under appeal should be set aside and that 25 April 1980 be regarded as the date of payment.

IV. The Board of Appeal sought information from the bank on the legal effect of notification of payment prior to entry of the amount paid into the account of the recipient. The bank replied that, in accordance with the law governing its banking transactions, revocation of payment is not possible once notification has been given to the payee. Further, on 25 April 1980 the EPO had the right to dispose of the moneys paid. The fact that 28 April 1980 was given as the value date and the booking date, made no difference to this. If the moneys had been disposed of, 25 April 1980 would have been treated as the value date.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is, therefore, admissible.

2. According to Article 8(1)(a) Rules relating to Fees, the date on which a payment shall be considered as having been made to the EPO is the date on which the amount of the payment is entered in a bank account held by the Office. The choice of this date as the effective date of payment is justified by the consideration that from then on the moneys have irrevocably become the assets of the EPO, which the payer can no longer recall, and that the EPO thereupon has the right to dispose of them as it wishes. A further reason for choosing the date of entry into the account may lie in the fact that any subsequent change in the date of payment, in particular antedating, is excluded after entry. The date at which the value is ascertained has no significance as regards defining the due date for payment in cases governed by Article 8 of the Rules relating to Fees, i.e. as the date on which payment shall be considered as having been made.

3. In the present case, the date of entry, in the sense of Article 8(1) (a) Rules relating to Fees, was after the final date of the period for payment. Only on the last day of this period (25 April 1980) was the EPO informed by the bank holding the account that it was crediting the EPO with the moneys. The question therefore arises whether, as a result of this communication, a legal situation was created which was equivalent to that of entry in the account. The answer depends on the law governing business transactions between the bank concerned and the EPO, i.e. the national law, together with any general conditions of business and any applicable special contractual terms. There were no special contractual terms in the present case. According to the bank, a legal situation was created by notification of receipt of payment, in which the bank could not permit the payer to revoke the payment and in which the EPO had the right to dispose of the moneys.

4. On the basis of the facts given and their legal effects, the communication by the bank to the EPO that it was crediting the Office with the moneys paid can be regarded as equivalent to entry in the account in accordance with Article 8(1) (a) Rules relating to Fees. To treat it as equivalent seems just, since, for technical reasons connected with banking operations, payments cannot always be entered on the day they are received and sometimes are not entered for several days thereafter, owing to the intervention of weekends and public holidays. Technicalities of banking operations which are beyond the control of the payer, should not prejudice him when he das sought to obtain immediate payment into the account of the EPO and the attempt has been made, by some alternative to immediate booking, to ensure that the payment is at the disposal of the EPO at the latest on the last day for payment.

5. No application has been made for reimbursement of the appeal fee in accordance with Rule 67 EPC and it is not considered that the circumstances of this case would justify such an order.

ORDER

For these reasons, it is decided that:

The Decision of the Receiving Section of the European Patent Office dated 7 August 1980 is set aside.