The possibility to file documents in proceedings under the EPC with the EPO in electronic form was first introduced by the Decision of the President of the European Patent Office dated 26 February 2009 concerning the electronic filing of documents, (OJ 2009, 182) ("2009 Decision”) as from 5.03.2009. Under Art. 108 EPC, the requirement 'in writing' has been deleted - in view of the future use of electronic means of communication, it was considered useful to avoid references to 'in writing' or 'in written form' and leave such regulation to the Implementing Regulations. Art. 108 EPC now states that the notice of appeal shall be filed in accordance with the Implementing Regulations.
Under Art. 108 EPC 1973, notice of appeal had to be filed in writing. Thus an appeal filed via electronic means (epoline®)), not being "in writing" was rejected as inadmissible in T 781/04 and T 991/04, referring to the EPO Notice dated 9.12.2003 concerning the My epoline® portal. Referring to T 781/04, T 991/04 and T 514/05 (OJ 2006, 526), the board in T 765/08 stated that documents purporting to be documents filed subsequently for the purposes of R. 2(1) EPC (here the notice of appeal) must be deemed not to have been received if they are filed by technical means not approved by the President of the EPO (here, electronically transmitted). This applies even if the means of transmission is subsequently allowed (T 331/08, following T 514/05); the board was not entitled to exercise discretionary power to consider whether the appeal, filed via epoline®, might nonetheless be deemed to have been filed, since i) to do so would be tantamount to exercising legislative power; 2) such legislative power was however clearly delegated in R. 36(5) EPC1973 to another authority within the EPO, namely the President; 3) thus pursuant to Art. 23(3) EPC1973 the board was precluded from examining whether this purported notice of appeal could be deemed to have been received, since such a procedure would be ultra vires; 4) it was immaterial that this means of communication was now permitted for the filing of appeals. It was the law and instructions in place at the time of filing which had to be applied.
The board in T 1090/08 also found the appeal inadmissible, as the statement of grounds of appeal were filed via epoline® prior to the entry into force of the 2009 Decision, but on the facts of the case granted re-establishment of rights in a decision dated subsequent to the entry into of force of the 2009 Decision.
In T 1427/09 the notice of appeal and statement of grounds were filed in due time but the electronic signatures were not issued to a person authorised to act in the proceedings, in contravention of Art. 8(2) of the 2009 Decision, which is silent on the legal consequences of non-compliance. The board held that the principle that the signature of an unauthorised person should be treated like a missing signature, as set out in T 665/89, should apply not only to handwritten signatures, but also to electronic signatures. The electronic filing of a document in appeal proceedings accompanied by the electronic signature of an unauthorised person should therefore be treated under R. 50(3) EPC like the filing of an unsigned document per mail or telefax in the same proceedings.