Examples of Service
Relating to Decisions
Decisions taken during written or oral proceedings must be served on the parties (A119 EPC and R111(1) EPC).
It is this service that starts the time limit for filing an appeal (if the decision is appealable, A108 EPC).
Relating to the Finding of Loss of Rights
If the EPO finds that a right has been lost without a decision of refusal, rejection, grant, revocation, maintenance, or relating to an investigative measure having been taken, a notice is sent to the party concerned (R112(1) EPC).
This notice then starts a 2-month time limit to request a decision on the matter (R112(2) EPC), which decision will be appealable (A106(1) EPC).
A122 EPC alone applies to the applicant or the proprietor.
Forms
Signatures and Name
All service (decision, summons, etc.) by the EPO must bear the signature and the name of the responsible officer (R113(1) EPC).
Nevertheless (R113(1) EPC):
- if the document is produced by computer, a seal may replace this signature.
- if the document is produced automatically by computer, the name of the responsible officer may be omitted.
A decision may not be signed « on behalf of » one of the examiners, even if that examiner was, for unknown reasons, prevented from doing so (T1033/16).
Mode of Service
By Post
Principle
This mode of service is provided for by R125(2) a) EPC (postal service or electronic means).
Types of Documents Served by Registered Mail with Acknowledgment of Receipt
Principle (before 1 November 2019)
Only the following are served by registered letter with acknowledgment of receipt (R126(1) EPC):
- decisions that trigger a time limit for filing an appeal;
- decisions that trigger a time limit for presenting a request for review;
- summonses.
The President of the EPO has not provided for any other cases of service by registered mail with acknowledgment of receipt (Guidelines E-II 2.3).
If one of these documents is not delivered by registered mail with acknowledgment of receipt (but, for example, via UPS), there is a defect in service (the first sentence of R126(2) EPC cannot be satisfied) and no time limit may begin to run, even if it is attested that the addressee received the document (G1/14).
Principle (after 1 November 2019)
No further correspondence will be sent by registered mail with acknowledgment of receipt (« Decision of the Administrative Council of 28 March 2019 amending Rule 126 of the Implementing Regulations to the European Patent Convention (CA/D 2/19) » OJ 2019, A31).
By Another Equivalent Postal System?
Since 1 April 2015, it has been possible to send notifications by registered mail with acknowledgment of receipt or by using another equivalent service (« Decision of the Administrative Council of 15 October 2014 amending Rules 2, 124, 125, 126, 127, 129, 133 and 134 of the Implementing Regulations to the European Patent Convention (CA/D 6/14)« , OJ 2015, A17).
This amendment follows a decision of the Enlarged Board of Appeal (G1/14) which had criticized the Office for sending a decision via UPS.
Types of documents served by registered mail
Principle (before November 1, 2019)
Other notifications are carried out by ordinary registered mail (R126(1) EPC).
When notifications are made by ordinary registered mail, the EPO has great difficulty proving the date of receipt (J9/05 and J18/05).
This situation was highlighted by a review decision (R4/17):
- The opponent’s appeal had been notified by registered mail to the proprietor, who alleged never having received it.
- The patent had been revoked by the EPO.
In view of the proprietor’s challenge regarding receipt of the appeal documents, the Enlarged Board of Appeal could only find a violation of the right to be heard (R4/17), even though such non-receipt was unlikely.
Principle (after November 1, 2019)
All communications from the EPO are transmitted by registered mail (« Decision of the Administrative Council of 28 March 2019 amending Rule 126 of the Implementing Regulations to the European Patent Convention (CA/D 2/19) » OJ 2019, A31).
Thus, the use of recorded delivery with acknowledgment of receipt is no longer applicable.
Date of receipt and deemed date of receipt
By default, the EPO considers that a notification is received by the addressee on the 10th day after dispatch (R126(2) EPC), unless the document is delivered to the addressee at a later date.
In case of dispute, the burden of proof lies with the EPO (R126(2) EPC): a simple statement from the postal service indicating that the letter was delivered is not sufficient (J14/14).
The date of receipt of the document is used to calculate time limits (R131(2) EPC).
Refusal of registered mail and validity of receipt of the letter
Service by registered mail is deemed to have been effected even if the letter is refused by the addressee (R126(3) EPC), but only if the refusal is made by a person who was entitled to do so (see national law, R126(4) EPC).
Other questions concerning service (e.g., whether receipt of the letter by a person other than the addressee constitutes service on the addressee) must be resolved by reference to national law (R126(4) EPC).
By « mailbox »
This method of service is provided for in R125(2)(b) EPC.
Certain notifications may be served electronically via a tool called « Mailbox ».
- the RRF and the RRI (« Notice from the European Patent Office dated 13 December 2011 concerning the EPO’s online services« , OJ 2012, 22);
- other notifications (« Decision of the President of the European Patent Office, dated 11 March 2015, concerning the pilot project to introduce new means of electronic communication in proceedings before the European Patent Office« , OJ 2015, A28), the list of which can be found on the EPO website (list of notifications available via Mailbox).
The 10-day period under R126(2) EPC is retained even under this method of transmission, starting from the date of notification or from the actual delivery in the Mailbox (the later date being taken into account, R127(2) EPC, and « Decision of the President of the European Patent Office, dated 11 March 2015, concerning the pilot project to introduce new means of electronic communication in proceedings before the European Patent Office« , OJ 2015, A28, A9(4)).
By direct delivery
This method of service is provided for under R125(2) c) EPC and R128 EPC.
This service is carried out at the EPO premises. It is deemed to have been effected even if the addressee refuses the document or refuses to acknowledge receipt.
The date of receipt is the date of service, and the 10-day fiction does not apply.
By direct service
This method of service is provided for under R125(2) d) EPC and R129 EPC.
If the EPO is unable to ascertain the address of the addressee or if service has not been possible after two attempts, service may be effected by publication (R129(1) EPC).
In this case, publication is made in the EPO Bulletin (R129(2) EPC together with « Decision of the President of the European Patent Office, dated 14 July 2007, concerning public service in accordance with Rule 129 EPC » OJ 2007, Special Edition No. 3, K.1 A2(1)).
The document is deemed to have been served upon expiry of a period of 1 month from the date of publication (R129(2) EPC together with « Decision of the President of the European Patent Office, dated 14 July 2007, concerning public service in accordance with Rule 129 EPC » OJ 2007, Special Edition No. 3, K.1 A2(1)).
By a contracting state
This method of service is provided for under R119 EPC and R125(3) EPC.
Service is effected in accordance with the national law applicable to the central industrial property office of that state.
Addressee
If a representative is appointed (authorized representative or attorney, but not an employee), service is effected on that representative (R130(1) EPC) or, at least, on one of them if there are several (R130(2) EPC).
If no representative is appointed, service is effected at the address indicated in the request for grant or in the notice of opposition.
A « correspondence address » may be indicated where applicable (« Notice from the President of the EPO dated 23 October 1980 concerning the use by applicants not represented by representatives of an address for correspondence« , OJ 1980, 397).
If a common representative is appointed, it is sufficient for service to be effected on that representative (R130(3) EPC).
If service is effected on the wrong addressee (i.e., not complying with the conditions mentioned above, e.g., service on the applicant when a representative has been appointed), the service is defective (R125(4) EPC and T703/92).
The EPO must therefore re-serve the document if the wrong addressee has not forwarded it to the correct addressee, the date of service remaining the date of receipt by the correct addressee (T1281/01) if this is later than the 10-day period.
Date of service
The date of service must be proven by the EPO (e.g., acknowledgment of receipt of the registered letter).
Failing this, the date of service is (Guidelines E-II 2.5 and R125(4) EPC):
- the date indicated as the date of receipt by the party; or
- the date on which the party sends a reply to that notification.
Defects in service
If a document does not reach its « correct » addressee, there is a defect in service under R125(4) EPC.
The « correct » addressee is understood to be a person who had the right to receive the correspondence: thus, the delivery of correspondence to a person who was only entitled to receive the representative’s personal mail but not their professional mail must be considered irregular (J3/14).