1.3.2 General dislocation or interruption in delivery or transmission of mail in a contracting state (R. 134(2) EPC)

Rule 134(2) EPC provides for a time limit to be extended if it expires on a day on which there is a general dislocation in the delivery or transmission of mail in a contracting state or in the contracting state where the EPO is located. The duration of the period of dislocation shall be as stated by the EPO. The term "general interruption" was deleted in the process of revising R. 85(2) EPC 1973. However, as evidenced by the preparatory documents, the retained term "dislocation" also refers to interruptions (CA/PL 17/06, p. 356). Decisions which interpret the term "general interruption" are still cited in the following as an aid to interpreting the "general dislocation" referred to in R. 134(2) EPC.

In T 1640/22, the board clarified that the term "party" in R. 134(2) EPC included not only persons who were already a party to pending proceedings but also persons who intended to become a party, such as potential opponents. Such (broad) interpretation was in accordance with the purpose of R. 134(2) EPC, which was to grant extraordinary relief where, due to general dislocation, users of the EPO system could not make their submissions in time. This finding is in line with T 702/89, which indicated that R. 85(2) EPC 1973 (predecessor of R. 134(2) EPC) also applied to the time limit of Art. 99(1) EPC for filing a notice of opposition.

In J 10/20 the Legal Board stated that R. 134(2) EPC did not distinguish between statutory periods and periods specified by a department of first instance or a board of appeal. Its scope of application was therefore not limited to the one or the other. The time limit for filing the statement of grounds of appeal may also be extended under this provision. If the requirements of R. 134(2) EPC are fulfilled, any time limit which expires within the period of interruption or dislocation is extended by operation of law (with regard to R. 85 EPC 1973, see J 11/88). The notices of the EPO concerning the disruptions due to the COVID-19 outbreak (see e.g. notice of 1 May 2020, OJ 2020, A60) refer to "the problems caused by the disruptions due to the COVID-19 outbreak". Rule 134(2) EPC, however, did not refer to a "general dislocation" as such, but to a "general dislocation in the delivery or transmission of mail". The EPO's notices were silent on whether there was a general dislocation in the delivery or transmission of mail in Germany. It thus seemed likely that these notices were based on an application of R. 134(2) EPC by analogy. Users and representatives could not be expected to question, without any apparent reason, statements on the extension of time limits which were made in publications under R. 134(4) EPC. Even if there had been no general dislocation in the delivery or transmission of mail, users could still rely on such publications without suffering any disadvantages.

In T 1338/20 the impugned decision was notified on 28 January 2020. Under normal circumstances, the two-month time limit under Art. 108, first sentence, EPC for filing the notice of appeal would therefore have expired on 7 April 2020 (R. 126(2) EPC as valid from 1 April 2015 to 31 October 2023). However, the notices of the EPO concerning disruptions due to the COVID-19 outbreak, dated 16 April 2020 (OJ 2020, A43) and 1 May 2020 (OJ 2020, A60), came into play here. With these notices, the EPO announced that time limits expiring on or after 15 March 2020 had been extended for all parties first to 4 May 2020 and then to 2 June 2020 under R. 134(2) EPC. As per J 10/20, even if there had been no "general dislocation in the delivery or transmission of mail" within the meaning of R. 134(2) EPC, users could still rely on these publications without suffering any disadvantages.

In J 4/23 the Legal Board explained that the Legal Board in J 10/20 had relied in its reasoning on the fact that users and representatives could not be expected to question, without any apparent reason, statements on the extension of time limits made in publications under R. 134(4) EPC, nor could they be expected to engage in individual investigations on whether and during which exact periods a dislocation had occurred in one of the contracting states, which might not even be their own. These statements confirmed that it was decisive whether users could be expected to question the information given to them and, if so, whether they would then have come to a conclusion different from the one provided in the EPO's information.

In T 1678/17 the appellant withdrew its request for oral proceedings and requested a partial refund of the appeal fee. The request for oral proceedings was not in fact withdrawn within one month of notification of the communication issued by the board. However, in view of the notice from the EPO dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak (OJ 2020, A60) and R. 134(2) and (4) EPC, the board held that the conditions for reimbursement of 25% of the appeal fee, stipulated in R. 103(4)(c) EPC, were fulfilled.

In J 11/88 (OJ 1989, 433) the Legal Board held that any time limit under the EPC 1973 which expired within the period of interruption or dislocation was extended by operation of law. Accordingly, if the President of the EPO did not issue a statement as to the duration of that period, because he did not have the relevant information at the right time, this could not affect the rights of a person adversely affected by the interruption or dislocation. Whether or not an interruption qualified as a "general interruption" was a question of fact, which had to be decided in the light of any credible information available; in case of doubt, the EPO should make official enquiries of its own motion in application of Art. 114(1) EPC 1973.

In J 4/87 (OJ 1988, 172) the Legal Board reaffirmed that in the event of an unforeseeable postal delay causing non-compliance with a time limit, the EPO had no discretion to extend the time limit other than in the cases referred to in R. 85(2) EPC 1973.

In J 3/90 (OJ 1991, 550) the Legal Board interpreted the concept of a general interruption, explaining that R. 85(2) EPC 1973 was not restricted to nationwide interruptions. In the case in hand, the Legal Board decided that the limited geographical extent of the disruption did not disqualify the interruption from being general. Whether or not a representative had undertaken all possible measures to avoid the effects of a postal strike was not a relevant test under R. 85(2) EPC 1973.

In J 1/93 the Legal Board again stated that for an interruption in the delivery of mail under R. 85(2) EPC 1973 to be considered general in character the public in general residing in an area of some magnitude, even if of limited geographical extent, had to be affected. The loss of a single mailbag might affect a number of individual addressees but not the public in general.

In J 14/03 the Legal Board confirmed that evidence of a disruption within the meaning of R. 85(2) EPC 1973 provided by the appellant can lead to a retrospective extension of time in a particular case, as occurred in J 11/88, if this evidence, had it been known at the time, would have been such as to warrant a presidential statement under R. 85(2) EPC 1973. However, in contrast to the probative value of the evidence in J 11/88, in the case in hand the evidence was inconclusive.