Examples of service

Relating to decisions

Decisions made during written or oral proceedings must be served on the parties (A119 EPC and R111(1) EPC).

It is this service that triggers the appeal period (if the decision is subject to appeal, A108 EPC).

Relating to the finding of loss of rights

If the EPO finds that a right has been lost without a decision having been taken on rejection, grant, revocation, maintenance or relating to an interlocutory measure, a notification is sent to the interested party (R112(1) EPC).

This notification then triggers a period of 2 months to request a decision on the matter (R112(2) EPC), a decision which will be subject to appeal (A106(1) EPC).

A122 EPC applies solely to the applicant or proprietor.

Forms

Signatures and name

All communications from the EPO (decision, summons, etc.) must bear the signature and name of the responsible officer (R113(1) EPC).

However (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.

It is not possible for a decision to be signed « on behalf of » one of the examiners, even if that examiner has, for an unknown reason, been prevented from doing so (T1033/16).

Method of service

By post

Principle

This method of service is provided for by R125(2) a) EPC (postal service or electronically).

Types of documents served by registered mail with acknowledgment of receipt
Principle (before 1 November 2019)

Only the following were served by registered mail with acknowledgment of receipt (R126(1) EPC) :

  • decisions that trigger an appeal period;
  • decisions that trigger a period for filing a petition 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 sent by registered mail with acknowledgment of receipt (but, for example, using UPS), there is a defect in service (the first sentence of R126(2) EPC cannot be satisfied) and no period can begin to run, even if it is attested that the recipient received the document (G1/14).

Principle (after 1 November 2019)

No more mail 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 April 1, 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 modification follows a decision by the Enlarged Board of Appeal (G1/14) which had criticized the sending by the Office of a decision by UPS.

Types of documents served by registered mail
Principle (before November 1, 2019)

Other notifications are made by simple registered mail (R126(1) EPC).

When notifications are made by simple 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.

Faced with the proprietor’s challenge regarding the receipt of the appeal documents, the Enlarged Board of Appeal could only note the violation of the right to be heard (R4/17) even though this non-receipt is 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 registered mail with acknowledgment of receipt is no longer necessary.

Date of receipt and presumed date of receipt

By default, the EPO considers that a notification is received by the addressee on the 10th day after its 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 declaration from the postal service indicating that the mail was indeed delivered is not sufficient (J14/14).

The date of receipt of the document is used to calculate the deadlines (R131(2) EPC).

Refusal of a registered letter and question of validity of receipt of the mail

Service by registered letter is deemed to have been effected even if this letter is refused by the addressee (R126(3) EPC), but only if the refusal is made by a person who had the right to do so (see national law, R126(4) EPC).

Other questions concerning service (e.g., the question of whether receipt of the letter by a person other than the addressee constitutes service to the addressee) must be resolved by looking at national law (R126(4) EPC).

By « mailbox »

This method of service is provided for by R125(2) b) EPC.

Certain notifications may be served electronically via a tool called « MailBox ».

  • the EPO Online Filing and EPO Online Filing 2.0 (« Notice from the European Patent Office dated 13 December 2011 concerning the EPO’s online services« , OJ EPO 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 EPO 2015, A28) the list of which can be found on the EPO website (list of notifications available via the Mailbox).

By direct delivery

This method of service is provided for by R125(2) c) EPC and R128 EPC.

This service is carried out on the premises of the EPO. 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.

By direct service

This method of service is provided for by 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 Official Journal (or European Patent Bulletin R129(2) EPC together with « Decision of the President of the European Patent Office dated 14 July 2007 concerning public service under Rule 129 EPC » OJ EPO 2007, Special edition No. 3, K.1 A2(1)) and the document is deemed to have been served one month after this publication (Decision of the President of the EPO of 14 July 2007).

The document is deemed to have been served upon the 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 under Rule 129 EPC » OJ EPO 2007, Special edition No. 3, K.1 A2(1)).

By a contracting state

This method of service is provided for by R119 EPC and R125(3) EPC.

Service is carried out in accordance with the national law applicable to the central industrial property office of that state.

Recipient

If a representative is designated (authorized representative or attorney, but not an employee), the notification is made to this representative (R130(1) EPC) or at least to one of them if there are several (R130(2) EPC).

If no representative is designated, the notification is made to the address indicated in the request for grant or in the opposition brief.

A « correspondence address » may be indicated if applicable (« Communication from the President of the EPO dated 23 October 1980 concerning the use by applicants not represented by professional representatives of an address for correspondence« , OJ 1980, 397).

If a common representative is designated, it is sufficient that the notification be made to this person (R130(3) EPC).

If the notification is made to the wrong recipient (i.e., not complying with the conditions mentioned above, e.g., notification to the applicant when they have a representative), the notification is defective (R125(4) EPC and T703/92).

The EPO must therefore re-notify the document if the wrong recipient has not forwarded it to the correct recipient, the date of notification remaining the receipt of the document by the correct recipient (T1281/01).

Date of notification

The date of notification must be proven by the EPO (e.g., receipt of the registered mail).

Failing this, the date of notification 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 response to this notification.

Defective notifications

If a document has not reached its « correct » recipient, there is a defective notification according to R125(4) EPC.

The « correct » recipient is understood to be a person who had the right to receive the mail: thus, the delivery of mail to a person who had the right to receive only the personal mail of the representative but not their professional mail must be considered irregular (J3/14).