T 0128/87 (Lost cheque) du 03.06.1988

1. The fact that an act safeguarding a time limit (here: filing of a cheque) was performed can in principle be established by furnishing proof establishing a sufficient degree of probability (continuation of T 243/86 "Lost statement of grouns of appeal/ AUDI" of 9 December 1986, not published, and T 69/86 "Lost telex confirmation/RENK" of 15 September 1987, not published).

2. Proof of the actual filing of a document (e.g. in the shape of grounds of appeal, a telex confirmation or a cheque) is furnished if on the strength of the circumstances described the likelihood that the item was filed is considerably greater than that it was not. The burden of proof falls on the party doing the filing.

3. The burden of proof also remains with the party doing the filing even when the EPO does not discover within in reasonable space of processing time that the document or enclosure filed (in this case a cheque) is missing and accordingly does not bring to the attention of the said party the fact that because the time limit has not yet expired he may still perform the act in question or repeat it.

4. However, it seems unfair to adhere to this principle considering that a quite considerable period of time remained until the end of the time limit and various EPO departments which could or should have checked that everything necessary had been submitted failed to notice that an enclosure was missing and therefore did not even give the party concerned the chance to make good the omission before the end of the time limit.