5.1. Burden of proof where notification is disputed

In the event of any dispute concerning the delivery of a document, it is incumbent on the EPO to establish that the document has reached its destination and to establish the date on which it was delivered to the addressee (R. 126(2) EPC for documents notified by postal services and R. 127(2) EPC for documents notified by means of electronic communication).

In T 2054/15, citing J 3/14 and J 14/14, the board explained that the party seeking application of R. 126(2) EPC had to set out the facts justifying it. The burden of proof on the EPO could not be taken to mean that the party was under no obligation to help clarify the circumstances within its own sphere of responsibility (e.g. T 247/98, see chapter III.G.5.1. on apportioning the burden of proof). The EPO was liable for risks arising both in its own sphere and during "transport", but the recipient was liable for those within its own sphere of organisation and influence (e.g. T 1535/10). When a registered letter had been delivered to the address of the representative, it was incumbent on him to establish that the letter was not received by a person authorised to take delivery of it, or that it did not actually reach him for some other reason.

In T 1535/10 the board held that responsibility for obstacles to and delays in the receipt of decisions to be notified under R. 126(1) EPC had to be assigned according to spheres of risk. The EPO was liable for both the risks arising in its own sphere and "transport risks". However, it distinguished such risks from those within the recipient's sphere of organisation and influence, e.g. the risk that employees or other authorised recipients failed to forward a letter delivered to the business address, or delayed in doing so. For a presumption that a letter had entered the recipient's sphere of organisation and influence, it sufficed that it had been delivered to his address and that he was in a position to take note of it, irrespective of whether he had actually taken (final) possession of it and noted its content (see also T 580/06).

In J 14/14, in keeping with the bulk of the boards' case law, the Legal Board held that it was clear from the wording of R. 126(2) EPC that, in the event of any dispute as to whether a notification had been received by the addressee, the onus was on the EPO to establish the fact and date of delivery (see also J 3/14). In the case in hand, the only proof of delivery that the EPO had in respect of the communication in question was a letter from Deutsche Post, referring to a registered letter sent to the appellant's representative and stating that it had been delivered to a person authorised to receive it. This was deemed insufficient to fulfil the requirements of R. 126(2) EPC since there was no proof that the appellant's representative or any other named individual had signed a document acknowledging receipt of the letter and no communication from the foreign postal service was disclosed (see also J 9/05 and J 18/05, where a similar confirmation letter by Deutsche Post was held not to be sufficient to prove the receipt of an EPO notification since the appellant had filed a considerable amount of counter-evidence and pointed out specific reasons why the letter might not have been received by the representative's office). See also T 691/16.

In T 1529/20 the board agreed with the appellant that a party submitting that something had not happened, i.e. that a communication had not been received, would have difficulty in trying to prove a negative (negativa non sunt probanda, see also T 2037/18, R 15/11, R 4/17). The filing of cogent evidence showing that a letter had not been received was hardly ever possible (see also J 9/05). Therefore, the respondent's arguments that the appellant allegedly had the duty to register mail incoming at their premises but had failed to provide an excerpt of such register was not pertinent, since there was no trace in the file that the EPO had discharged its burden of proving delivery. Under such circumstances, the appellant did not have to bear the risks normally falling in their sphere of responsibility (T 1535/10), so that they had to be given the benefit of the doubt (J 9/05).

In T 258/19, a letter was returned to the EPO by the post office as "Non reclamé". However, an acknowledgement of receipt that had apparently been signed by the representative of the appellants was also present on file. The board held that, in view of the return of the letter by the post office, the allegation by the appellants that signing and returning the acknowledgement of receipt had been a misunderstanding did not seem improbable. Moreover, the burden of proof for establishing whether the document was received was on the EPO. This implied that in case of doubt, like in the present case, the appellant must be given the benefit of the doubt.

In T 529/09, however, the board held, distinguishing the case in hand from J 9/05 and J 18/05, that unlike in these cases, the appellant had not submitted any further arguments or evidence in order to demonstrate that the Deutsche Post's confirmation had failed to establish that the registered letter had reached its destination. The evidence on file therefore had to be regarded as sufficiently reliable and complete for proving the proper delivery of the letter (see also T 1304/07, T 1934/16).

In T 247/98 the board stated that when establishing the meaning of the term "im Zweifel" in the German version of R. 126(2) EPC, account should be taken of the French and English versions, which assume that there is a dispute ('en cas de contestation', 'in the event of any dispute'). A dispute ('Zweifel', literally 'doubt' in the German version) within the meaning of this rule could only arise if it was maintained that a letter had in fact been received more than ten days following its posting. The mere absence of the advice of delivery or the receipt from the file was not in itself sufficient to give rise to a dispute ('Zweifel') within the meaning of this rule.

In T 2210/10 the board explained that R. 126(2) EPC could not mean that it was the duty of the EPO to start enquiries as soon as a party, against the evidence on file, considered that the mail had not been properly notified. The EPO could not be expected to undertake exhaustive investigations to establish on their own the date of notification in the absence of serious doubts.

As regards differences in the signature on the advice of delivery recording that notification is effected, the board in T 691/16 pointed out that notification did not necessarily have to be effected by means of delivery to the actual recipient, but could also be effected by means of delivery to people living in the building or with the necessary authorisation. That was generally what happened at companies. There was therefore no reasonable doubt that the intervener had received the notice of action as claimed.

If the EPO is unable to prove that a document has been delivered, the document in question will be reissued with a new date, resulting in the application of the notification legal fiction based on that later date (see notice from the EPO of 6 March 2023 concerning amended R. 126, 127 and 131 EPC (OJ 2023, A29).