Following the withdrawal of a European patent application, a refusal by the Examining Division of a request for a 75% refund of the examination fee, on the basis that substantive examination had already begun (Article 11(b) RFees), must be based on facts which objectively demonstrate that this is so.In the case at issue, the examiner had simply alleged that he had already started the examination without giving any more detailed facts or evidence in support of this allegation. The board refers to the principles of the democratic legal order entailing the need to ensure predictability of jurisdiction and
hence legal certainty by preventing arbitrariness as set out in G 3/08. Furhter, the board notes:
It appears to the Board that the application of these principles is particularly important in the present case for two reasons. First, since the decision which the Office, via the Examination Division, is required to take involves its own financial interests, it is important for the public confidence in the Office that the decision-making process should be transparent. For the same reason it is also important that such decisions should be reviewable by the Boards of Appeal. Second, in the present case any relevant information lay solely within the knowledge of the Office. It is not a case in which, for example, a communication had been sent to the applicant, so that there were externally verifiable facts on which a decision to refund fees could be based and reviewed. This makes it important that the applicant (and the Board of Appeal) knows what the actual underlying facts are on which the decision was based. (cf. point 12 of the reasons, emphasis added).In hope that the particular importance of the principles of the democratic legal order in cases where the EPO's finances are concerned does not imply that these principles are less important in cases which do not affect the EPO's finance.