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Case Law of the Boards of Appeal

 
 
2. Notification to representatives

If a representative has been appointed, notifications shall be addressed to him in accordance with R. 130(1) EPC (previously R. 81(1) EPC 1973). In addition to the decisions reported below, the reader is referred to J 39/89, J 22/94, J 17/98, T 703/92 and T 1281/01.

In its decision J 5/04, the board made it clear that the initial designation of a representative at the time when the international application had been filed with a receiving Office other than the EPO (here: INPI) did not meet the requirements for the valid designation of the representative for the regional phase before the EPO.

In T 812/04, the board pointed out that R. 101(6) EPC 1973, in conjunction with R. 81(1) EPC 1973, clearly indicated that, until the termination of an authorisation had been communicated to the EPO, the latter was obliged to notify communications, decisions or other documents to the duly appointed representative and that these notifications alone would have valid effects. The fact that the appellant had filed the notice of appeal himself imposed no obligation on the Registry of the boards of appeal to inquire about the legal status of relations between the applicant (client) and the duly appointed representative or to send the documents and communications subsequently directly to the client direct.

In J 19/92 the Legal Board of Appeal held that notifications to an applicant's representative were duly made if they were despatched before the representative relinquished his brief. The notification to the applicant did not therefore have to be repeated after the brief had been relinquished. On the contrary, it was the representative who was obliged to inform his client of the notification. In T 247/98 the board confirmed that what determined whether a R. 81(1) EPC 1973 notification was to be sent to the representative was the legal situation at the time when the document was despatched.

However, in T 703/92 the written decision and minutes of the oral proceedings were sent not to the authorised representative but to the opponents. The board found that, as the provision relating to notification had not been observed, the question whether a notification had effectively taken place depended (in accordance with R. 82 EPC 1973) on whether and when the representative had received the full decision.

In T 172/04 the notification concerned had been received by an employee authorised to receive post on behalf of the representative. That the representative himself only had knowledge of the notification several days or weeks later was therefore irrelevant, as the only legal condition to consider, i.e. delivery to the addressee, was established. This finding was upheld in T 743/05, in which the board observed that the addressee is a person to whom something is addressed and that the authorised employee of the representative's office's signature on the advice of delivery met this definition. A different interpretation (i.e. that it had to be brought to the attention of the professional representative himself), would lead to uncertainty for all the users of the European Patent system, as the answer to the question whether notification had effectively taken place could in that case depend entirely on the honesty, goodwill or organisational skills of the professional representative (similarly T 261/07).