2.2.2 Opposition period
(i) Filing using the EPO's Online Filing software
In T 480/21 the board stated that the EPO's Online Filing system was intended to be installed on users' electronic systems. If the software supplied by the EPO contained some bug which meant that any attempted filing would inevitably fail, that fault would be attributable to the EPO, even though the software was not running on an EPO machine or on EPO premises. In the case in hand, following a malfunction of the Online Filing system on the last day of the opposition period, the opponent successfully filed the notice of opposition by fax the same day. The request therein that the EPO debit a deposit account for the payment of the opposition fee was however not carried out. The opponent then successfully paid the opposition fee the following day using the Online Filing system, thus outside the regular opposition period. However, the payment period was extended under point 5.5 ADA to at least the next day, due to the malfunction of the Online Filing system, and as the payment was made on this day, the opposition was deemed to have been filed in time.
(ii) Filing by fax
From 1 July 2024, the EPO no longer accepts filings by fax (see decision of the President of the EPO dated 22 April 2024 concerning the abolition of facsimile (fax) as a means of filing patent applications and other documents, OJ 2024, A41). The decisions below therefore relate to filings prior to the applicability of this decision.
In T 2061/12, the board noted that the case law of the boards of appeal distinguished between fax parts received before and after midnight, according the different filing dates (T 683/06, T 2133/10; decision of the President of the EPO dated 12 July 2007, OJ SE 3/2007, 7, in force at the relevant time,). In this case, only the last page and possibly part of the penultimate one had arrived after midnight, while Form 2300 signed by the representative, the payment form and at least the first two pages of the notice of opposition – which at a minimum substantiated a novelty objection – had all certainly reached the EPO before midnight. The opposition had therefore been filed in due time under Art. 99(1) EPC; it also complied with R. 76(1) and (2) EPC. It was therefore admissible (R. 77(1) and (2) EPC). See also T 2317/13.
However, in T 858/18 the board held that if a facsimile transmission of a document within the meaning of R. 50(3) EPC begins on an earlier date and extends beyond midnight to a later date, the entire document is accorded the later date as the single date of receipt. The board found that the decision of the President of the EPO dated 12 July 2007 concerning the filing of patent applications and other documents by facsimile (OJ SE 3/2007, 7) provided no legal basis for according the earlier date as the date of receipt for the part of the document arriving at the EPO before midnight. The term "document" referred to the record of a complete unit of information.
The board in T 2307/15 (regarding a statement setting out the grounds of appeal received by fax) did not follow this approach, but confirmed the approach taken in T 2061/12 and T 2317/13 (for a more detailed summary of T 2307/15, see chapter V.A.2.6.).