J 0011/88 (Postal strike) 30-08-1988

I. European patent application No. 84 306 417 was filed on behalf of a U.S. applicant on 20 September 1984 by a professional representative having his place of business in England. The European Patent Bulletin published the search report on 17 September 1986, and by communication pursuant to Rule 50 EPC dated 23 September 1986 the representative's attention was drawn to the requirement to file the request for examination and pay the examination fee within the period laid down in Article 94(2) EPC.

II. The receipt by the EPO of the requisite examination fee took place on 18 March 1987, one day after the expiry of the six-month time limit laid down by Article 94(2) EPC. The applicant, on being invited to do so by the EPO, then took advantage of Rule 85b EPC, by remedying the deficiency through the payment of the prescribed surcharge. It is this surcharge that the applicant now seeks to have refunded.

III. In a letter dated 24 March 1987, the applicant's representative explained to the EPO that a strike by post office workers in the area in which he has his place of business between 10 and 13 March 1987, followed by dislocation in the delivery of mail until 17 March 1987 inclusive, had been the sole cause of the delay in the receipt by the EPO of the examination fee. The representative also filed, as evidence of the above- mentioned strike, a letter from the UK Post Office confirming the existence and the location as well as the dates of the strike. The EPO wrote to the representative on 10 April 1987, informing him that the postal strike did not constitute a "general interruption or subsequent dislocation in the delivery of mail in a Contracting State", within the meaning of Rule 85(2) EPC, and thus did not have the effect of extending the time limit to 18 March 1987, which was the date on which the examination fee was in fact received. Accordingly, in the view of the EPO, the need to pay a surcharge under Rule 85b EPC was not obviated.

IV. In a letter dated 5 June 1987 to the EPO the representative contested the EPO's interpretation of Rule 85(2) EPC, contending that the nature of any postal interruption was a question of fact, to be decided upon the evidence in each case and that the application of the Rule was not, accordingly, limited to a full national strike.

V. During the year 1987, the President of the EPO, in accordance with Rule 85(2) EPC, had issued three separate notices concerning extension of time limits upon the ground of interruptions of postal services in the UK. All these notices were duly advertised in the Official Journal of the EPO, but none of them covered the period during which the strike in question took place.

VI. On 28 October 1987 the Formalities Section of Directorate General 2 issued a decision rejecting the applicant's claim to have his surcharge refunded, relying on the evidence at that time available to it, and also upon a decision of the Legal Board of Appeal (J 4/87 OJ EPO 1988, 172), laying down that the EPO has no general discretion to extend a time limit and that any discretion it has must be derived from the EPC. Since the wording of Rule 85(2) EPC specifically requires there to be a general inter ruption in the delivery of mail and since the EPO has not been instructed that there was such an interruption, the time limit for paying the examination fee could not be extended, and therefore the surcharge could not be refunded.

VII. The appellant duly filed an appeal against this decision. In the Statement of Grounds of the appeal the appellant submits that the above-mentioned three notices by the President of the EPO were made in respect of interruptions whose circumstances were identical with, or analogous to, those of the interruption in this case. The appellant further contends that in the absence of specific criteria within Rule 85(2) EPC as to what may, or may not, constitute a general interruption or subsequent dislocation in the delivery of mail in a Contracting State, the EPO was under an obligation to examine the evidence set out in the representative's letter of 24 March 1987 and in the letter from the UK Post Office, which confirmed the existence of a strike. Had it done so, the EPO would have had to conclude that the strike in question was indeed analogous to the strikes, in magnitude and consequence, in respect of which the President had, during 1987, issued three notices.

VIII. On appeal, the appellant has adduced further evidence in support of his contentions, namely a letter dated 10 December 1987 from the Assistant Comptroller, Patents and Designs (UK Patent Office), addressed to the Vice- President, Legal and International Affairs EPO, in which he states that in his view the strike in question was of such magnitude that had the UK Patent Office been requested to issue an appropriate certificate in respect of UK proceedings, it would have done so. The Assistant- Comptroller, in his letter, nonetheless indicates his reluctance to grant a retrospective certificate for the purposes of these proceedings, inter alia, because of the long period of time that had elapsed since March 1987.

IX. The appellant also submits that the President of the EPO has inherent power to issue notices under Rule 85(2) EPC without any instruction or communication relating to postal interruptions from the appropriate patent authority of a Contracting State. He requests that the decision under appeal be set aside and that a refund of the surcharge paid under Rule 85b EPC be ordered.