The EPO has issued a press release on the opinion of the Enlarged Board of Appeal in G 1/18. 

The referral related to the question of whether, where a notice of appeal is filed after expiry of the time limit for filing an appeal (Article 108 EPC), an appeal to the Boards of Appeal a) is inadmissible or b) should be deemed not to have been filed. The question was referred by outgoing EPO President Benoît Battistelli, just before the end of his term. For a full background to the case see IPKat post here.

Former EPO President Battistelli

The EPO press release states (emphasis added):

In its opinion G 1/18, the Enlarged Board…takes the view that the consequence in law of a failure to observe the two‑month time limit under Article 108 EPC is that the appeal is deemed not to have been filed, and not that it is to be rejected as inadmissible, and that, accordingly, the appeal fee will be reimbursed in such cases. In so finding, the Enlarged Board has endorsed the prevailing view in the Boards’ case law

The press release further notes that the Enlarged Board of Appeal is of the opinion that “its answers to the referred point of law apply not only to appeals but also, by analogy, to similar situations, for instance in opposition proceedings (Article 99(1) EPC)”.

We await publication of the Enlarged Board of Appeal opinion in full.
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