3. Administrative agreements under Article 10(2)(a) EPC

According to Art. 10(1) EPC the European Patent Office is managed by the President, who is responsible for its activities to the Administrative Council. To this end, Art. 10(2)(a) EPC empowers and requires the President to "take all necessary steps to ensure the functioning of the European Patent Office".

On 29 June 1981 the Presidents of the German Patent Office (GPO) and the EPO entered into an Administrative Agreement concerning the filing of documents and payments (OJ 1981, 381). In G 5/88, G 7/88 and G 8/88 (OJ 1991, 137) the Enlarged Board of Appeal considered the validity of this Administrative Agreement. The primary object and purpose of the agreement was to provide a mechanism whereby documents which are sent to the EPO, but delivered by error to the GPO (and vice versa), should be marked with the date of receipt at the wrong office and treated accordingly by the office for which they are intended.

The Enlarged Board noted that the extent of the power given to the President under Art. 10(2)(a) EPC to "take all necessary steps to ensure the functioning of the European Patent Office" was not capable of exact definition. In each case it had to be considered how far a particular step was necessary for ensuring the functioning of the EPO. So far as the agreement was concerned with the problem of incorrect delivery of documents in Munich (at the EPO and the GPO premises there), the conclusion of the agreement was a necessary step in order to avoid unjustified loss of rights to parties, and thus to ensure the proper functioning of the EPO. However, as far as the EPO sub-office in Berlin was concerned, there had been no basis for such an agreement until 1 July 1989. Before that date the sub-office in Berlin had not been a filing office, nor had a letterbox been installed. As far as documents and payments which reached the EPO via the GPO's office in Berlin were concerned, the administrative agreement was therefore invalid. The Enlarged Board applied, however, the principle of good faith and the protection of the legitimate expectations of users of the EPO in favour of the opponent, who had filed a notice of opposition against a European patent via the GPO's Berlin office, relying on the agreement published in the Official Journal.

In T 485/89 (OJ 1993, 214) the board held that a notice of opposition filed by fax at the GPO in Munich on the last day of the opposition period and forwarded to the EPO the next day was admissible; the opposition fee had already been paid some days earlier. Oppositions filed within the prescribed time by fax at the GPO in Munich while intended for the EPO were covered by the Administrative Agreement of 29 June 1981 and should be treated by the EPO as if it had received them directly, irrespective of whether or not they had been wrongly delivered.

Following talks between the Presidents of the German Patent and Trademark Office (GPTO, formerly the GPO) and the EPO, both offices agreed, in the interests of legal certainty, that the Administrative Agreement dated 29 June 1981 concerning procedure on receipt of documents and payments would, with effect from 1 September 2005, no longer be applied (OJ 2005, 444).

 

 

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