2.5.1 Electronic filing of appeal

Pursuant to the Decision of the President dated 10 November 2015 (OJ 11/2015, A91), appeals too may now be filed in electronic form. The case law below relates to cases decided prior to the date this decision entered into force (on 16 November 2015).

Under Art. 108 EPC 1973, notice of appeal was filed in writing. Art. 108 EPC was amended when the EPC was revised. It now requires appeals to be filed in accordance with the Implementing Regulations (see R. 99 EPC). Thus an appeal filed via electronic means (epoline®), not being "in writing" was rejected as inadmissible in T 781/04 of 30 November 2005 and T 991/04 of 22 November 2005, referring to the EPO Notice dated 9.12.2003 concerning the My epoline® portal. Referring to T 781/04, T 991/04 and T 514/05 (OJ 2006, 526), the board in T 765/08 stated that documents purporting to be documents filed subsequently for the purposes of R. 2(1) EPC (here the notice of appeal) must be deemed not to have been received if they are filed by technical means not approved by the President of the EPO. This applies even if the means of transmission is subsequently allowed (T 331/08, following T 514/05); the board was not entitled to exercise discretionary power to consider whether the appeal, filed via epoline®, might nonetheless be deemed to have been filed, since i) to do so would be tantamount to exercising legislative power; 2) such legislative power was however clearly delegated in R. 36(5) EPC1973 to another authority within the EPO, namely the President; 3) thus pursuant to Art. 23(3) EPC1973 the board was precluded from examining whether this purported notice of appeal could be deemed to have been received, since such a procedure would be ultra vires; 4) it was immaterial that this means of communication was now permitted for the filing of appeals. It was the law and instructions in place at the time of filing which had to be applied. The board in T 1090/08 also found the appeal inadmissible, but on the facts of the case granted re-establishment of rights.

In T 1427/09 of 17 November 2009 the notice of appeal and statement of grounds were filed in due time but the electronic signatures were not issued to a person authorised to act in the proceedings, in contravention of Art. 8(2) of the 2009 Decision, which was silent on the legal consequences of non-compliance. The board held that the principle that the signature of an unauthorised person should be treated like a missing signature, as set out in T 665/89, should apply not only to handwritten signatures, but also to electronic signatures. The electronic filing of a document in appeal proceedings accompanied by the electronic signature of an unauthorised person should therefore be treated under R. 50(3) EPC like the filing of an unsigned document per mail or telefax in the same proceedings.

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