2.1. Notification by postal services

R. 126 EPC lays down the provisions relating to notification by postal services. All notifications by postal services are by registered letter.

In R. 126 EPC, and also in R. 125(2) EPC and R. 133(1) EPC, references to "post" were replaced by "postal services" and "postal service providers" in 2015 (CA/D 6/14, OJ 2015, A17). This gave the EPO the freedom to choose any postal service provider it regarded as suited to serving notification.

In view of the low return rate of advices of delivery and the notable administrative burden associated with their processing, R. 126(1) EPC was amended to discontinue the use of advices of delivery (CA/D 2/19, OJ 2019, A31). Decisions incurring a period for appeal or a petition for review, summons and any notice or other communication triggering a time limit must instead be notified by registered letter only, if not notified electronically (OJ 2019, A57). Notices and communications from which no time limit is reckoned, or which do not require notification under the EPC or by order of the EPO President, may continue to be sent by ordinary mail. Amended R. 126(1) EPC came into force on 1 November 2019.

Following the decision to discontinue the use of advices of delivery (OJ 2019, A31), until 1 February 2024, the EPO continued to enclose an acknowledgement of receipt form (EPO Form 2936) with both notifications by registered letter of decisions incurring a period for appeal, as well as summonses. Addressees were requested to date and sign the form and return it immediately (see T 1529/20, summarised below in III.S.5.1., in which the board established that the case in hand did not contain a confirmation of receipt of the decision of the opposition division from the appellant). Notifications by the boards which concerned decisions, summonses, communications drawing attention to formal deficiencies or noting a loss of rights, and such other documents as determined by a board in a particular case, were also effected by registered letter and included the relevant acknowledgment of receipt form (EPO Form 3936). The same applied to notifications by the Enlarged Board. The practice of requesting and sending postal acknowledgments of receipt was abolished with effect from 1 February 2024 (OJ 2023, A108).

With effect from 1 November 2023, R. 126(2) EPC was amended to abandon the ten-day legal fiction for notification and to introduce the notification legal fiction based on the date of the document (CA/D 10/22, OJ 2022, A101). In the case of a postal notification, under EPO practice, the date of the document is the date on which it is handed over to a postal service provider. To facilitate this, the EPO post-dates its documents to allow them to be processed internally and issued on the date they bear. See notice from the EPO of 25 November 2022 concerning legal changes to support digital transformation in the patent grant procedure (OJ 2022, A114) and notice from the EPO of 6 March 2023 concerning amended R. 126, 127 and 131 EPC (OJ 2023, A29). On the practice of post-dating written decisions see G 12/91.

In T 1693/13, the EPO had notified the contested decision using courier service UPS before R. 126 EPC as amended in April 2015 had entered into force. The board held that the appellant had been entitled in the circumstances to assume that the UPS courier service was treated as "post" within the meaning of R. 126 EPC as then still in force and that it made no difference to how the appeal period was determined under that provision whether a decision had been sent by post or by UPS. In contrast, in G 1/14 (OJ 2016, A95) the Enlarged Board took the view that old R. 126(1) EPC related solely to notification by post using a "registered letter with advice of delivery" and not to any other kind (by UPS in the case in hand).

On the question of the burden of proof and safeguards in connection with notification irregularities, see in this chapter III.S.5.

In T 1596/14 the board noted in obiter dictum that there was no evidence or indication that the alleged unequal treatment of the parties induced by different dates of notification of the same decision had been detrimental to any party's interests. There did not appear to be any consequences for the admissibility of the appeals or for the due course of the ensuing appeal proceedings. The board noted that there was no specific sanction or remedy foreseen in the EPC for this situation and it seemed to the board that it was difficult to assume that appellant I's suggestion to re-send the decision with a new common notification date would be a remedy, since the parties in the case in hand were already aware of each other's arguments.