On 1 April 2015, a set of amendments to the Implementing Regulations concerning notification and the use of electronic tools in proceedings before the European Patent Office (EPO) enters into force.[ 1 ] This notice gives an overview of the changes. For more information, see CA/47/14.[ 2 ]
These amendments have also made it necessary to revise the decision of the President of the EPO dated 14 July 2007 concerning the application of Rule 133 EPC on the late receipt of documents[ 3 ] and the decision dated 4 July 2012 concerning the pilot project to introduce new technical means of communication in EPO proceedings.[ 4 ] This notice explains the revised decisions.
1. In Rule 126 EPC, and also in Rules 2(1), 125(2) and 133(1) EPC, references to "post" have been replaced by "postal services" and "postal service providers". This allows the Office to choose any postal service provider it considers suitable for notifying its decisions, summonses, communications and notices. The President's above-mentioned decision dated 14 July 2007 has been revised to reflect the new terminology. The revised decision (OJ EPO 2015, A29) enters into force on 1 April 2015.
2. Amended Rule 125(1) EPC clarifies which documents are subject to notification. It merely gives an explicit legal basis to the Office's existing practice of not formally notifying notices and communications from which no time limits are reckoned.
3. New Rule 127(2) EPC extends to electronic notification the safeguards that already apply for paper. This provision is not limited to any specific technical solution or tool, such as the Mailbox service.
3.1. Amended Rule 127 EPC defines the date on which an electronic document is deemed to be delivered as the tenth day after its transmission. It stipulates that in case of dispute the Office must prove that the electronic document reached its destination, or - where the date rather than the fact of notification is disputed - the date on which it did so. Users will be notified in electronic form only if they have agreed to receive communications by electronic notification.
3.2 As a consequence of this amendment, the President's above-mentioned decision dated 4 July 2012, which currently provides the legal basis for the EPO's Mailbox service, has been replaced. The revised decision (OJ EPO 2015, A28) also enters into force on 1 April 2015.
The revised decision defines the date of transmission, which triggers the ten-day period under Rule 127(2) EPC. This period starts on the date indicated on the document ("the date of the document"), provided the addressee has access to it in the Mailbox by that date. In other words, the ten-day period does not start before the date of the document. So if the addressee has access to the document before that date, the decisive date is still the date of the document. If he disputes the date of transmission, it is up to the EPO to establish it. The ten-day period will start on the date thus established.
3.3. The following examples illustrate the application of Rule 127(2) EPC in conjunction with Article 9(4) of the decision of the President dated 11 March 2015:
3.3.1. Date of document later than date of transmission
A search report is dated 6 March 2015, but was already available in the representative's Mailbox on 4 March 2015.
Under Article 9(4) of the revised decision, the decisive date of transmission is the date of the document, i.e. 6 March 2015. The additional condition - that the search report has been made available in the Mailbox - is also fulfilled. By virtue of Rule 127(2) EPC, the search report is deemed to be notified on the tenth day after that date, i.e. 16 March 2015.
3.3.2. Date of document same as date of transmission
A communication under Article 94(3) EPC is dated 9 March 2015, and is made available in the Mailbox on the same day. Under Article 9(4) of the revised decision, the decisive date is the date of the document, i.e. 9 March 2015. The additional condition - availability in the Mailbox - is also fulfilled. Hence, the communication is deemed to be notified on the tenth day after that date, i.e. 19 March 2015.
3.3.3. Date of document earlier than date of transmission
A communication under Rule 71(3) EPC is dated 11 March 2015, but the recipient does not think it became available in the Mailbox until 16 March 2015. Under Rule 127(2) EPC, second sentence, it is for the Office to establish the date on which it was actually made available in the Mailbox. If the recipient proves to be correct and 16 March is established as the date of transmission, the communication is deemed to be notified on the tenth day after that date, i.e. 26 March 2015.
4. Amended Rule 124(3) EPC allows the Office to authenticate minutes by electronic means as an alternative to hand-written signatures.
5. In amended Rules 2, 125, 127 and 134 EPC, "technical means of communication" has been replaced by "means of electronic communication", a more modern and meaningful term. This purely editorial amendment does not imply any legal change.
6. The German text of Rule 129 EPC has been brought into line with the English and French versions.
[ 2 ] Available at www.epo.org/about-us/organisation/documentation/ac-documents.html