Key points
- The appellant tried to submit a Statement of grounds on the last day of the period by fax.
- “ At 18.48 hrs on the day of the deadline its in-house representative had started to submit the letter setting out the grounds of appeal via fax using the computer fax equipment installed at the appellant's office. Since the representative had not yet received a confirmation of receipt or a notice that sending had failed, he sent the letter again at 20.27 hrs in the same way. After sending the second fax, the representative left the office. The next day he found two "delivery delayed" reports received at 22.58 hrs (for the first fax) and 00.27 hrs (for the second fax). The representative then informed the appellant's IT expert, who found that the computer fax equipment used at the representative's office was limited to a maximum file size of 10 MB and that the letter to be sent on 2 June 2020 had a size of 14 MB, attachments included.”
- “the [fax] capacity had been inadvertently reduced from 50 to 10 MB when the appellant's telephone system was updated by an external technician between 22 and 25 April 2020; the appellant had not noticed this. Once the IT expert had reset the limit to 50 MB, the letter was sent to the EPO without issue at 11.02 hrs on 3 June 2020. The appellant was of the opinion that it missed the time limit because of a unique and unintended misconfiguration of its computer fax equipment. ”
- The Board: “Despite there being other ways to send documents to the EPO, for example online filing, the appellant relied solely on the functioning of its computer fax system. Since these technical systems can be prone to faults, this alone makes the board question whether this satisfies the requirements of due care. This applies all the more in a time when technical support is not readily available.”
- As a comment, I'm not sure if the Board here says that due care generally requires that an in house professional representative acting as employee under Article 133(3) EPC (as in the present case) has an EPO smart card and EPO Online Filing installed at his office computer when filing a submission on the last day of a period. I also note that Online Filing can not be used without smart card (same for CMS) and that a smart card can not be obtained within a day. Furthermore, the EPO President has decided to not make WebForm filing unavailable in appeals for reasons which are unclear at least to me even more since the EPO itself wishes to phase out fax due to unreliability.
- As a puzzle, what could the in house attorney have done to meet the deadline on the evening of the last day? There are certainly solutions but calling a patent attorney working at a firm is a helpful first step.
T 0538/20 -
https://www.epo.org/law-practice/case-law-appeals/recent/t200538eu1.html
Summary of Facts and Submissions
I. The appeal is against the opposition division's decision posted on 2 January 2020 rejecting the appellant's opposition against the European patent No. 2 542 286 entitled "VENTILATION DEVICE".
II. The appeal was filed on 28 February 2020, followed by the statement setting out the grounds of appeal dated 2 June 2020 and received on 3 June 2020.
source http://justpatentlaw.blogspot.com/2021/07/t-053820-filing-problems-in-house-last.html
