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Case Law of the Boards of Appeal

 
 
4.5.5 Due care in using mail delivery services

In decision T 667/92 the board considered whether the appellant could be said to have taken all the due care required by the circumstances when allowing only two days for delivery from the UK to Germany and whether, in these circumstances, the choice of using a special carrier for the delivery was in keeping with the due care requirement. The board pointed out that a party who missed a time limit had also to show due care in its choice of method of delivery and that the use of outside agents might be held against the applicant under Art. 122 EPC 1973 owing to a lack of proper safeguards. The board added that in parallel situations telefaxing should preferably be used. The board took into account the very extraordinary circumstances regarding the withholding of the item by the customs in Munich for 36 hours, an incident which could not reasonably be foreseen, and allowed the request.

In T 381/93 the problem arose from the failure of the private courier service to deliver the package containing the corresponding documents to the EPO as instructed. In deciding on due care, the board referred to decision T 667/92, in which it was stated that a party who had missed a time limit had also to show due care in its choice of method of delivery. The board held that once a reliable carrier had been chosen and commissioned for the delivery, a party was entitled to rely on them, provided that the party had given all the necessary and proper instructions to the carrier.

If a party to proceedings requests re-establishment of rights on the basis that a document missed an EPO time limit because it did not arrive within the standard delivery time, that party will have to prove that the form of postage used would normally have ensured that the document would reach the EPO on time. The board left out of account the question of whether a party who relies on the usual delivery time has exercised all due care with regard to the time limit (T 777/98, OJ 2001, 509).