Résumé de EPC2000 Art 099(1) pour la décision T0480/21 du 19.01.2024

In T 480/21 the opponent had attempted to file a notice of opposition using EPO Online Filing software on the last day of the opposition period. This transmission had failed. The opponent had then, on the same day, filed the notice by fax, including a copy of the online opposition form 2300E. The fax comprised a request for debiting of a deposit account for the payment of the opposition fee. The EPO had not carried out this request. A further, successful request had been made on the day after the expiry of the opposition period, using the EPO online payment system via web payment. The opposition division had deemed the opposition not to have been filed. On appeal, the opponent requested that the decision be set aside. The board recalled that payment of the opposition fee was governed by Art. 5 RFees. It could be made by bank transfer, by credit card or by debiting of a deposit account held with the EPO, as governed by the Arrangements for deposit accounts valid as from 1 December 2017 (hereinafter ADA). The board agreed with the opposition division's finding that the debit order had not been received at the EPO in an electronically processable format (XML) within the regular opposition period, but only in the form of a fax. Payment on the following day came too late (points 5.1.2, 5.1.3 and 5.1.4 ADA). Without a remedy, the legal consequence would be that the notice of opposition would be deemed not to have been filed. The board referred to the first sentence of point 5.5 ADA, which read: "If a payment period expires on a day on which one of the accepted means of filing debit orders under point 5.1.2 is not available at the EPO, the payment period is extended to the first day thereafter on which all such means as are available for the type of application concerned can be accessed again." The board also referred to the "Notice from the EPO dated 18 January 2018 concerning the safeguards available under the EPC and the PCT in case of unavailability of means of electronic communication". Point 7 of this notice read: "A means of electronic communication may exceptionally be unavailable for reasons other than those indicated above (e.g. a malfunction). Although the burden of proving receipt lies with the party alleging submission in time, the EPO will look into any alleged unavailability of a means of electronic communication. A user in doubt as to whether a document was properly transmitted is recommended to contact EPO Customer Services. The user will suffer no adverse consequences if it is confirmed that the unavailability was attributable to the EPO. However, to be sure of avoiding any adverse consequences, it is also advisable, as a precautionary measure, to request the legal remedy available." The board concluded that an extension of the period for paying the opposition fee was provided under point 5.5 ADA. The evidence strongly suggested that the inability to file the debit order was due to a malfunction of the EPO's Online Filing software, which, in this case, was attributable to the EPO. Hence, the payment period was extended under the first sentence of point 5.5 ADA to at least the next day. On that day, the payment was successfully made. The opposition was thus validly filed. The board noted that this result did not constitute a disproportionate protection of the opponent's legitimate expectation to be able to rely on safeguards in the event of malfunction of the EPO's software, as opposed to the proprietor's legitimate expectation of legal certainty. The proprietor was aware that a notice of opposition had been sent by fax in due time and should have been aware of the possibility of an extension of the payment period under point 5.5 ADA.