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Case Law of the Boards of Appeal

 
 
2.5.3 Appeal filed within the time limit

In T 389/86 (OJ 1988, 87) the board stated that an appeal which was filed after pronouncement of a decision in oral proceedings but before notification of the decision duly substantiated in writing complied with the time limit pursuant to Art. 108, first sentence, EPC 1973. See also T 427/99 and T 1125/07.

Where the translation of the notice of appeal in an official language of the EPO was not filed in due time, the notice was deemed not to have been received according to Art. 14(5) EPC 1973 and the appeal not to have been filed (T 323/87, OJ 1989, 343; see also T 126/04). Where the notice of appeal was filed in a non-official language by a company not entitled to benefit from the provisions of Art. 14(4) EPC 1973 and a translation into an official language was filed on the same day, the notice of appeal was nonetheless deemed not to have been filed. In view of G 6/91 (OJ 1992, 491), where the translation was filed at the same time as the original, the EPO could not take it as the "official" notice of appeal and ignore the original as superfluous. As further stated in G 6/91 "a translation cannot become the original; whatever the date on which it is filed it remains a translation, with all ensuing legal consequences, including the possibility of correction to bring it into conformity with the original" (T 1152/05 and T 41/09). The residence or principal place of business of the professional representative used was irrelevant (T 149/85, OJ 1986, 103 and T 41/09).

According to T 1281/01 the legal fiction that the decision (under appeal) had been delivered on the tenth day following its posting (R. 78(2) EPC 1973) did not apply when it had actually been delivered to a previously authorised representative after she had notified the EPO that the file had been transferred to another representative. Pursuant to R. 82 EPC 1973, the decision under appeal was deemed to have been notified on the date it was received by the authorised representative and the appeal had thus been filed in due time.

Similarly, where an appellant was misled by the EPO into thinking that the decision issued was only a draft, being replaced by a second one, it was sufficient if he filed the appeal within four months of notification of the second written decision (T 830/03). Where the opposition division misleadingly issued two decisions, it sufficed if the statement of grounds of appeal was filed within the time limit applicable to the second decision, even if it was outside the time limit for the first decision (T 993/06).