Zusammenfassung von EPC2000 Art 072 für die Entscheidung J0005/23 vom 04.09.2023

In J 5/23 the applicant had filed an appeal against the Legal Division's decision rejecting the request to record the transfer of the application. The appeal hinged on how the term "signature" in Art. 72 EPC was to be understood and, in particular, whether it encompassed electronic signatures in the form of "text string signatures" without any further qualification. The Legal Board recalled that when interpreting the provisions of the EPC, the principles of interpretation laid down in Art. 31 and 32 of the VCLT 1969 must be applied. Starting out with the wording of the term, the Legal Board found that in the given context of a contract the term "signature" signified mostly a handwritten depiction of someone's name. The Legal Board then examined the underlying purpose of the provision in light of the object and purpose of the treaty. It noted that the general rationale underlying Art. 72 EPC was that there must be clear and unambiguous formal requirements for the transfer of a European patent application, resulting in a sufficient level of authenticity of the assignment contract. It would be at odds with the rationale of this provision if - without any explicit legal basis - any type of text in electronic form referring to the name of a person were considered a "signature" within the meaning of Art. 72 EPC. The Legal Board further established that in the systematic interpretation of the EPC, the material to be taken into account included the entirety of the articles of the EPC, as well as the Implementing Regulations to it. The latter encompassed the Implementing Regulations to the EPC 1973 as well as subsequent amendments. As to R. 2(1) EPC the Legal Board stated that this provision regulated how documents might be filed "in proceedings before the European Patent Office". The phrase "where the Convention provides that a document must be signed" in R. 2(2) EPC had to be read not in an isolated manner but in the context of the entire provision, taking account of the contents of R. 2(1) EPC and the title of R. 2 EPC. The Legal Board concluded that the scope of application of R. 2 EPC in its entirety was limited to formal requirements for filing documents in proceedings before the EPO. Such formal requirements concerned a relationship between the EPO, a public authority, and a party to proceedings before the EPO, which was usually a private party. Art. 72 EPC, on the other hand, regulated formal requirements for assignment contracts. This usually concerned a relationship between two or more private parties. Hence, R. 2 EPC and Art. 72 EPC regulated entirely different matters. Moreover, unlike Art. 72 EPC, R. 2 EPC did not have any impact on national law. Regarding the "Decision of the President of the EPO dated 14 May 2021 concerning the electronic filing of documents" (OJ 2021, A42), the Legal Board noted that, as the scope of application of R. 2 EPC was limited to formal requirements for filing documents in proceedings before the EPO, the power conferred to the President of the EPO in R. 2(2), second sentence, EPC, was subject to the same limitation. The appellant had also referred to the "Notice from the European Patent Office dated 22 October 2021 concerning electronic signatures on documents submitted as evidence to support requests for registration of a transfer of rights under Rules 22 and 85 EPC and requests for registration of a licence or other rights under Rule 23 EPC" (OJ 2021, A86). According to the Legal Board, while a notice from the EPO might be a source of legitimate expectations (see J 10/20), it was, as such, only a document providing information. The Notice was not a legal instrument passed by a competent legislative body, so it could neither implement nor specify any articles of the EPC. It was not part of the material referred to in Art. 31(2) and (3) VCLT and was not to be taken into account for a systematic interpretation of Art. 72 EPC. In conclusion, the Legal Board, applying the general rule of interpretation pursuant to Art. 31 VCLT to the term "signature" in Art. 72 EPC, held that in the absence of a different definition in the Implementing Regulations, this term must be understood as referring to a handwritten depiction of someone's name, written on the assignment "contract" referred to in Art. 72 EPC.