EPO express
rendered 21 November 1983
In a decision of the board of appeal the decision will most of the time speak of the appellant which is the person, or company in which name an appeal has been lodged. To make the decision more comprehensive this annotated summary uses the term “applicant” for the applicant of the European patent application also for the time after the applicant had lodged the appeal.
At the time of decision T 0081/83 it was possible to file documents with the EPO by telex. However, a telex communication had to be confirmed by submitting a signed copy of the document within two weeks by ordinary mail. Rule 36 EPC 1972 has been partially replaced by Rule 50 EPC 2000. European patent applications, international applications and other documents may not be longer filed by telegram, teletex or similar means. Applications so filed shall be deemed not to have been received. However filing by facsimile, although the EPO would like to abandon this possibility as electronic filing by the EPO’s has been made available through EPO Online Filing (OLF), the EPO case management system (CMS) or the EPO Web-Form Filing service (Web-Form Filing). According to a decision of the President of the European Patent Office dated 12 July 2007 concerning the filing of patent applications and other documents by facsimile, a reproduction of the filing person's signature on the facsimile is be deemed sufficient to confirm the document's authenticity. If the signature clearly indicates the filing person's name and position it is no longer necessary to file a confirmation by ordinary mail or by hand.
By decision of the Administrative Council of 10.12.1998 which entered into force on 01.01.1999 Rule 84a EPC 1973, now Rule 133 EPC 2000, documents received late at the European Patent Office shall be deemed to have been received in due time if it was posted, or delivered to a recognised delivery service, in due time before the expiry of the time limit in accordance with the conditions laid down by the President of the European Patent Office, unless the document was received later than three months after expiry of the time limit. If this Ruel would have been in place already at the time, the re-establishment would not have been necessary. However, for documents arriving later than three months the applicant still have the re-establihment of rights as a last resort, although within these three months the EPO normally would have already warned the applicant that his documents have not been received.
If a letter to the EPO was correctly addressed and correctly stamped and was posted in what should have been sufficient time to reach the EPO on or before the time limit that should have been met, the delay in delivery must be attributed to the postal authorities concerned. In such a situation it is considered that all due care required by the circumstances had been taken.
On 5 April 1983, the applicants for European patent application No. 81 xxx filed notice of appeal, by telex, against a decision of Examining Division dated 11 February 1983. The appeal fee was duly paid.
The telex was received by the EPO on 5 April 1983 but a letter reproducing the contents of the telex was not received until 28 April 1983, although it had been posted by the applicants' representatives in Milan on 11 April 1983, as is evidenced by the post mark on the envelope.
As the letter was not received by the EPO within two weeks from the receipt of the telex the telex has to be deemed not to have been received (Rule 36(5), last sentence EPC 1973) unless the applicants are re-established in their rights pursuant to Article 122 EPC.
The applicants' representatives were unaware that their letter had not been received in due time until they were notified of the fact by the EPO, by telephone, on 20 June 1983. They applied for re-establishment of rights within the pre-scribed time limits of Articles 122(2) and (3) EPC and the fee was also received at the EPO within the time limit. The applicants' representatives contended that they could reasonably expect that their letter reproducing the telex would be received in due time by the EPO.
The delay in delivery of the applicants' representatives letter posted on 11 April 1983 must be attributed to the postal authorities concerned. The letter was correctly addressed and correctly stamped. It was posted in what should have been sufficient time to reach the EPO on or before 19 April 1983. In the circumstances of the case, the Board is satisfied that all due care required by the circumstances had been taken by the applicants, through their representatives. It follows that the application for re-establishment of rights can be granted.
For these reasons, it is decided that:
The applicants are restored in their rights and their Notice of Appeal filed by telex on 5 April 1983 is to be considered as having been duly received on that date.
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