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Case Law of the Boards of Appeal

 
 
c)
Legal fiction of deemed notification 

In J 7/82 (OJ 1982, 391) the board held that in a case in which the receipt of a notification was relevant to the question of when the cause of non-compliance with a time limit had been removed, the significant date was the date of actual receipt by the applicant. In J 22/92 the board emphasised that the removal of the cause of non-compliance was a matter of fact and therefore had to be established beyond any reasonable doubt. This was not the case where under R. 78(2) EPC 1973 (in the version in force until 31 December 1998) the notification was only deemed to have been made when despatch had taken place and when the receipt of the letter could not be proved. Thus, the board considered the date on which the responsible representative of the appellant first became aware of the missed time limit to be the date on which the removal of the cause of non-compliance with the time limit had occurred (see T 191/82, OJ 1985, 189).

In T 428/98 (OJ 2001, 485) it was stated that where a communication from the EPO notified an applicant that he had missed a time limit, the cause of failure to complete the omitted act within the meaning of Art. 122(2), first sentence, EPC 1973 was as a rule removed on the date when the applicant actually received the communication, provided that failure to complete the act was purely due to previous unawareness that the act had not been completed. The legal fiction of deemed notification under R. 78(3) EPC 1973 (in the version in force until 31 December 1998, now R. 126(2) EPC) had no effect on the date of removal of the cause of non-compliance, even if this worked against the applicant because the actual date of receipt of the communication preceded the date calculated according to R. 78(3) EPC 1973 (see also T 1063/03).

In J 11/03, however, the board agreed with the appellant that the removal of the cause of non-compliance had not taken place before deemed notification in accordance with R. 78(2) EPC 1973, since there was no indication that the communication concerning loss of rights had already been received before that date (see also J 10/99).