In J 9/96 the Legal Board of Appeal held that notification of a communication posted as an ordinary letter in accordance with R. 78(2) EPC 1973 (no longer applicable since 1.1.1999) was deemed to have been made when despatch had taken place. However, if the communication did not reach the addressee and was not returned to the EPO, the legal fiction of deemed notification could not be applied, unless the EPO could establish that it had duly despatched the communication (see also J 27/97 and J 32/97).
According to J 27/97, facsimile transmissions of notifications did not satisfy the requirements of R. 77(1) and (2) EPC 1973 and could not therefore be considered as regular notification within the meaning of Art. 119 EPC 1973 and R. 77 EPC 1973. However, under the new R. 127 EPC, notification may be effected by such technical means of communication as are determined by the President of the EPO and under the conditions laid down by him (decision of the President of the EPO of 4 July 2012, OJ 8-9/2012, 486).
In T 580/06 notification of a shortfall under point 6.4 ADA was sent only by fax. This form of notification was in keeping with point 6.4 ADA in conjunction with R. 77(2)(d) EPC 1973. However, the President had not laid down conditions for notifications by fax within the meaning of that rule; in particular, postal confirmation of the fax had not been made compulsory. Thus the notification had been made in due form. In the board's view, the "OK" on a fax transmission report was to be regarded as evidence of complete and error-free transmission, by which the fax had entered the recipient's domain.
When establishing the meaning of the term "im Zweifel" in the German version of R. 126(2) EPC, account should be taken of the French and English versions, which assume that there is a dispute ('en cas de contestation', 'in the event of any dispute'). A dispute ('Zweifel', literally 'doubt' in the German version) within the meaning of this rule could only arise if it was maintained that a letter had in fact been received more than ten days following its posting. The mere absence of the advice of delivery or the receipt from the file was not in itself sufficient to give rise to a dispute ('Zweifel') within the meaning of this rule (T 247/98).