4.
Spheres of risk and apportioning the burden of proof 
III.O.4. Spheres of risk and apportioning the burden of proof 

R. 126(2) EPC states: "Where notification is effected in accordance with paragraph 1, the letter shall be deemed to be delivered to the addressee on the tenth day following its handover to the postal service provider, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be." In cases where the EPO is not able to prove the actual date of notification, a letter, for instance, sent by the addressee himself which indicates the date of receipt is accepted as proof. If it is evident from an addressee's reply that he has received the document, although he does not mention the date of its notification, the date on which that reply was written is to be regarded as the date of notification (Guidelines E‑I, 2.5 – November 2015 version, re R. 125(4) EPC). The risk associated with electronic notification under the new R. 127 EPC is apportioned in the same way.

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 Office 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 keeping with the bulk of the boards' case law, it was decided in J 14/14 that it is clear from the wording of R. 126(2) EPC that, in the event of any dispute as to whether a notification has been received by the addressee, the onus is on the EPO to establish the fact and date of delivery. In the case, 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 was 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 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 the Deutsche Post was held not to be sufficient to prove the receipt of an EPO notification).

In decisions T 529/09 and T 1304/07 however, the boards held that seeing as the appellant did not submit any further arguments or evidence in order to demonstrate that the Deutsche Post's confirmation failed to establish that the registered letter reached its destination, the evidence on file had to be regarded as sufficiently reliable and complete for proving the proper delivery of the letter.

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.

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