4. Administrative Agreements concluded by the European Patent Office

According to Art. 10(1) EPC the European Patent Office shall be managed by the President, who shall be responsible for its activities to the Administrative Council. To this end, Art. 10(2)(a) EPC empowers and requires the President to "take all necessary steps to ensure the functioning of the European Patent Office"

The Presidents of the German Patent Office (GPO) and the EPO entered into an Administrative Agreement on 29.6.1981 concerning the filing of documents and payments (OJ 1981, 381). In G 5/88, G 7/88 and G 8/88 (OJ 1991, 137) the Enlarged Board of Appeal considered the validity of this Administrative Agreement. The primary object and purpose of this Agreement was to provide a mechanism whereby documents which are sent to the EPO, but which are delivered by error to the German Patent Office (and vice versa), should be marked with the date of receipt at the wrong office and treated accordingly by the office for which they are intended.

The Enlarged Board noted that the extent of the power under Art. 10(2)(a) EPC given to the President "take all necessary steps to ensure the functioning of the European Patent Office" was not capable of exact definition, nor was it necessary to attempt this for the purposes of the Decision. The question to be considered in each case was how far a particular step is necessary for ensuring the functioning of the EPO. So far as the Agreement was concerned with the problem of incorrect delivery of documents at Munich (at the EPO and the German Patent Office premises there), in the view of the Enlarged Board it could reasonably be concluded that the making of the Agreement with the German Patent Office was a necessary step for the President to take in order to avoid unjustified loss of rights to parties, and thus to ensure the proper functioning of the EPO. In the case at issue, however, the validity of the Agreement insofar as it contained provisions concerning the delivery of documents in Munich was not in issue. However, as far as the EPO sub-office in Berlin was concerned, there was no basis for such a regulation until 1.7.1989. Before this date the sub-office in Berlin was not a filing office, nor was a letter-box installed. As far as documents and payments which reached the EPO via the GPO's office in Berlin were concerned, the Administrative Agreement was therefore invalid.

The Enlarged Board of Appeal applied the principle of good faith in favour of the opponent, who had filed a notice of opposition against a European patent via the Berlin office of the GPO, relying on the Agreement published in the Official Journal.

In T 485/89 (OJ 1993, 214), the board held that a notice of opposition filed by fax at the GPO in Munich on the last day of the opposition period and forwarded to the EPO the next day was admissible; the opposition fee had already been paid some days earlier. Oppositions filed within the prescribed time by fax at the GPO in Munich while intended for the EPO were covered by the Administrative Agreement of 29.6.1981 and should be treated by the EPO as if it had received them directly, irrespective of whether or not they had been wrongly delivered.

Following talks between the Presidents of the German Patent and Trademark Office and EPO, both offices agreed, in the interests of legal certainty, that the Administrative Agreement "Administrative Agreement dated 29 June 1981 concerning procedure on receipt of documents and payments" would, with effect from 1 September 2005, no longer be applied (OJ 2005, 444).


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