Service of decisions, citations, notifications, etc.

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Chapter 1. Examples of meanings

Section 1.1. Relative to decisions

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

It is this meaning that sets off the appeal period (if the decision is subject to appeal, A108 EPC).

Section 1.2. Relating to the finding of loss of rights

If the EPO establishes the loss of a right entitlement without a decision rejecting, granting, revoking, maintaining or relating to a measure of inquiry having been taken, a notification is sent to the interested party (R112 (1) EPC).

This notification then sends a delay of 2 months to request a decision in this case (R112 (2) EPC), which will be subject to appeal (A106 (1) EPC).

TheA122 EPC is applicable only to the applicant or holder.

Chapter 2. Shapes

Section 2.1. Signatures and name

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

However (R113 (1) EPC):

  • if the document is computer generated, a seal may replace that signature.
  • if the document is automatically generated by computer, the name of the responsible agent can be omitted.

It is not possible for a decision to be signed "on behalf" of one of the examiners, even if the examiner has, for some unknown reason, been prevented (T1033 / 16).

Section 2.2. Mode of service

2.2.1. By mail

1) Principle

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

2) Types of documents served by LRAR
Principle (before November 1, 2019)

Only are served by registered letter with acknowledgment of receipt (R126 (1) EPC):

  • decisions that give rise to a time limit for appeal;
  • decisions that cause a delay in filing a request for review;
  • the citations.

The President of the EPO has not provided for other cases of service byGuidelines E-II 2.3).

If one of these documents is not delivered by registered mail with acknowledgment of receipt (but, for example, using UPS), there is a defect of service (the first sentence of R126 (2) EPC can not be satisfied) and no delay can begin to run, even if it would be attested that the addressee would have received this document (G1 / 14).

Principle (after November 1, 2019)

No more mail will be transmitted by LRAR (" Decision of the Administrative Council of 28 March 2019 amending Rule 126 of the Regulations under the European Patent Convention (CA / D 2/19) " OJ 2019, A31).

By another equivalent postal system?

Since 1 April 2015, it is possible to send the notifications by LRAR or by using another equivalent service (" Decision of the Administrative Board of 15 October 2014 amending Rules 2, 124, 125, 126, 127, 129, 133 and 134 of the Regulations under the European Patent Convention (CA / D 6/14) », OJ 2015, A17).

This amendment follows a decision of the Grand Chamber (G1 / 14) who had criticized the dispatch by the Office of a decision by UPS.

3) Types of documents served by LR
Principle (before November 1, 2019)

Other meanings are realized by registered simple (R126 (1) EPC).

Where the meanings are simple, the EPO has great difficulty proving the date of receipt (D9 / 05 and J18 / 05).

This situation was highlighted by a revision decision (R4 / 17) : 

  • the opponent's appeal had been notified by LR to the proprietor who alleged that he had never received it.
  • the patent had been revoked by the EPO.

In the face of the complainant's challenge to the receipt of the appeal documents, the Enlarged Board of Appeal could only find that the right to be heard had been infringed (R4 / 17) even though this non-reception is unlikely.

Principle (after November 1, 2019)

All communications from the EPO are transmitted by LR (" Decision of the Administrative Council of 28 March 2019 amending Rule 126 of the Regulations under the European Patent Convention (CA / D 2/19) " OJ 2019, A31).

Thus, the use of the LRAR is no longer appropriate.

4) Date of receipt and fictional date of receipt

By default, the EPO considers that a notification is received by the recipient on the 10th day after it is sent (R126 (2) EPC) unless the coin is later delivered to the consignee.

In case of dispute, the burden of proof rests with the EPO (R126 (2) EPC): a simple declaration by the postal service that the mail has been delivered is not sufficient (J14 / 14).

The date of receipt of the coin is used to calculate the time (R131 (2) EPC).

5) Refusal of a registered mail and question of validity of reception of the mail

Service by registered letter is considered effected even if this letter is refused by the addressee (R126 (3) EPC), but only if the refusal is made by a person who was entitled to it (see the national law, R126 (4) EPC).

Other questions concerning service (eg whether receipt of the letter by another person than the addressee means service to the addressee) must be resolved by looking at the national law (R126 (4) EPC).

2.2.2. By "mailbox"

This mode of service is provided by the R125 (2) (b) EPC.

Some notifications can be served electronically via a tool called "MailBox".

  • the RREE and the RRI (" Notice from the European Patent Office dated 13 December 2011 concerning the EPO Online Services », OG 2012, 22);
  • other notifications (" Decision of the President of the European Patent Office dated 11 March 2015 on the pilot project to introduce new electronic means of communication for proceedings before the European Patent Office », OJ 2015, A28) whose list can be found on the EPO website (list of notifications available via Mailbox).

The 10-day period of the R126 (2) EPC is retained even via this method of transmission from the date of the notification or from the actual delivery in the Mailbox (the most recent date is taken into account, R127 (2) EPC, and Decision of the President of the European Patent Office dated 11 March 2015 on the pilot project to introduce new electronic means of communication for proceedings before the European Patent Office », OJ 2015, A28, A9 (4)).

2.2.3. By direct delivery

This mode of service is provided by the R125 (2) (c) EPC and the R128 EPC.

This meaning is effected on the premises of the EPO. This is deemed done even if the recipient refuses the document or refuses to acknowledge receipt.

The date of receipt is the date of the service and the fiction of the 10 days does not apply.

2.2.4. By direct meaning

This mode of service is provided by the R125 (2) (d) EPC and the R129 EPC.

If the EPO is not able to know the address of the addressee or if service has not been possible after two attempts, the service may be made by publication (R129 (1) EPC).

In this case, the publication is carried out at the BEB (R129 (2) EPC together " Decision of the President of the European Patent Office dated 14 July 2007 concerning public service pursuant to Rule 129 EPC " OG 2007, Special Edition No. 3, K.1 A2 (1)).

The document is deemed to be served upon the expiration of 1 month from the date of publication (R129 (2) EPC together " Decision of the President of the European Patent Office dated 14 July 2007 concerning public service pursuant to Rule 129 EPC " OG 2007, Special Edition No. 3, K.1 A2 (1)).

2.2.5. By a contracting state

This mode of service is provided by the R119 EPC and R125 (3) EPC.

Service shall be effected in accordance with the national law applicable to the central industrial property service of that State.

Section 2.3. Recipient

If an agent is appointed (authorized agent or lawyer, but not an employee), service is given to that agent (R130 (1) EPC) or at least one of them if there are more than one (R130 (2) EPC).

If no representative is appointed, service shall be made at the address indicated in the request for grant or in the notice of opposition.

A "correspondence address" may be indicated where appropriate (" Notice from the President of the EPO dated 23 October 1980 concerning the use by unrepresented applicants of an address for correspondence », OJ 1980, 397).

If a common representative is appointed, it is sufficient for the service to be given to him (R130 (3) EPC).

If the service is made to the wrong addressee (ie not respecting the conditions mentioned above, eg service to the plaintiff while he has an agent), the service is flawed (R125 (4) EPC and T703 / 92).

The EPO must therefore resignify the document if the wrong recipient did not forward it to the correct addressee, the date of service remaining the receipt of the document by the correct recipient (T1281 / 01) if it is later than 10 days.

Chapter 3. Date of service

The date of service must be proven by the EPO (eg registered receipt).

Otherwise, the date of service is (E-II 2.5 Guidelines 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.

Chapter 4. Vices of service

If a document has not reached its "good" addressee, there is a defect of R125 (4) EPC.

A "good" recipient is a person who has the right to receive mail : thus, the delivery of a mail to a person who had the right to receive only the personal letters of the agent but not his professional letters must be regarded as irregular (J3 / 14).

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