3.2. Information provided as courtesy service

The principle of the protection of legitimate expectations also applies to courtesy services provided by the EPO where these are not worded so as to rule out any misunderstanding on the part of a reasonable addressee. However, an applicant cannot rely on the EPO systematically providing certain courtesy services and therefore is not entitled to base a claim on their omission (J 12/84, OJ 1985, 108; J 1/89, OJ 1992, 17; J 27/92, OJ 1995, 288; G 2/97, OJ 1999,123), or on the fact that the communication was not sent to the correct addressee (J 23/10).

In J 1/89 the board held that the applicant was entitled to rely on the accuracy and completeness of information provided as a courtesy service. He could not, however, rely on courtesy services not required by the EPC being systematically provided. If an applicant paid a renewal fee late as a result of a misleading reminder, he had to be treated as if he had paid in time.

In J 34/92 the fifth-year renewal fee had not been paid in full. The professional representative did not receive the communication the EPO usually issues drawing attention to the fact that late payment of the renewal fee was possible upon payment of an additional fee. The loss of rights communication under R. 69(1) EPC 1973 (R. 112(1) EPC) made, however, reference to such communication. The board held that the communication drawing attention to the possibility of a late payment plus surcharge was only a courtesy service of the EPO. The applicant could not draw any conclusions in his favour from the fact that this communication was not sent.

In T 2053/20, however, the board upheld the opponent's legitimate expectations and concluded that the appeal fee had been paid within the time limit of two months provided for in Art. 108 EPC. The appellant had stated that they intended to pay the appeal fee in the notice of appeal and the corresponding accompanying letter. The methods used for this purpose, i.e. automatic debit order and direct debiting mandate from the current account (which had not been issued in the correct electronic format), were not permitted under the ADA and their annexes (version in force in 2019) for paying the appeal fee. However, the corresponding reminder of non-payment, actually provided for in the ADA, had not been communicated by the EPO. In the board's view, in the absence of such a communication from the EPO, the appellant could assume in the circumstances that the payment instructions they had issued to debit the appeal fee had been accepted and executed.

In J 27/92 (OJ 1995, 288) the appellant's representative had relied on the advice given by the Information Office by telephone as to the amount of the examination fee payable. The board held that where such a service had been rendered, an applicant was entitled to rely upon its content if the – written or oral – communication from the EPO was the direct cause of the action taken and, on an objective basis, it was reasonable for the appellant to have been misled by the information. See also J 10/17.