1.3.3 Dislocation due to an exceptional circumstance (Rule 134(5) EPC)

In J 13/05 the Legal Board highlighted that R. 85(5) EPC 1973 was inserted into the EPO following the events of 11 September 2001 because the legal remedies available at that time were inadequate. It was decided not to extend R. 85(2) EPC 1973 to postal interruptions outside the contracting states, as only for those states could the EPO be sure of obtaining the information necessary to enable the President to announce a general interruption or dislocation. Therefore, unlike the preceding paragraphs, R. 85(5) EPC 1973 was drafted so as to place the burden of proof on the party asserting a general interruption or dislocation of the mail service. Like R. 85(2) EPC 1973, R. 85(5) EPC 1973 required that more than one person using the mail service be affected or theoretically capable of being affected by the interruption or dislocation, even if a merely minor or geographically limited interruption might be sufficient.

In T 1547/20, due to the COVID-19 pandemic and associated disruptions, all periods expiring on or after 15 March 2020 had been extended to 2 June 2020 under R. 134(2) and (4) EPC. After that date, R. 134(5) EPC could be invoked in cases of failure to observe time limits due to exceptional occurrences (see notice in OJ 2020, A74).