Service of decisions, citations, notifications, etc.

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Chapter 1. Examples of meanings

Section 1.1. Relative to decisions

Decisions, taken during a written or oral procedure, must be served on the parties (A119 EPC and R111 (1) EPC).

C & #8217; it is this meaning which makes the appeal period start (if the decision is subject to appeal, A108 EPC).

Section 1.2. Relating to the finding of loss of rights

If the EPO notes the loss of a right without a decision to reject, issue, revoke, maintain or relate to an instruction measure having been taken, a notification is sent to the interested party (R112 (1) EPC).

This notification then sends a delay of 2 months in order to request a decision in this case (#8217;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 the meanings (decision, quotation, etc.) of the EPO must be signed and the name of the responsible officer (#8217; EPO).R113 (1) EPC).

However (R113 (1) EPC):

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

& #8217; it is not possible that & #8217; a decision is signed & #8220; for the account & #8221; d & #8217; one of the examiners, even if this examiner has, for an 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 by LRAR (Guidelines E-II 2.3).

If one of these documents is not delivered by registered post with acknowledgment of receipt (but, for example, using UPS), there is a defect in service (the first sentence of the 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 sent by LRAR (& #8220;Decision of the Board of Directors of March 28, 2019 amending rule 126 of the Regulations for the execution of the European Patent Convention (CA / D 2/19)OJ 2019, A31).

By another equivalent postal system?

As of April 1, 2015, it is possible to send notifications in LRAR or using another equivalent service (& #8220;Decision of the board of directors of October 15, 2014 amending rules 2, 124, 125, 126, 127, 129, 133 and 134 of the regulations for the execution of 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 sending by the office of #8217; 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).

When service is done by simple registered mail, the EPO has great difficulty in 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 holder, who alleged that he never received it.
  • the patent had been revoked by #8217; EPO.

Faced with the holder's dispute as to the receipt of the appeal documents, the Grand Board of Appeal was only able to find that the right to be heard had been violated (R4 / 17) even though this non-reception is unlikely.

Principle (after November 1, 2019)

All communication from the EPO is transmitted by LR (& #8220;Decision of the Board of Directors of March 28, 2019 amending rule 126 of the Regulations for the execution of the European Patent Convention (CA / D 2/19)OJ 2019, A31).

Thus, the use of LRAR n & #8217; is more 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 its sending (R126 (2) EPC) unless the coin is later delivered to the consignee.

In case of dispute, the burden of proof rests on the EPO (#8217;R126 (2) EPC): a simple declaration from the postal service that the mail was delivered was 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 receipt of 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 & #8220; mailbox & #8221;

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

Some notifications can be served electronically via a tool called & #8220; MailBox & #8221; .

  • the RREE and the RRI (& #8220;Notice from the European Patent Office dated 13 December 2011 concerning the EPO Online Services” , OG 2012, 22);
  • other notifications (& #8220;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 the proceedings before the European Patent Office.” , OJ 2015, A28) the list of which can be found on the website of EPO (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 & #8220;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 the 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 service is effected on the premises of the EPO. This is deemed to be done even if the recipient refuses the part or refuses to acknowledge receipt.

The date of receipt is the date of service and the 10-day fiction 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 addressee's address or if service has not been possible after two attempts, 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 in accordance with Rule 129 EPCOG 2007, Special Edition No. 3, K.1 A2 (1)).

The document is deemed to be served at the expiration of #8217; 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 in accordance with Rule 129 EPCOG 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, at 1 & #8217; one of them & #8217; there are several (R130 (2) EPC).

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

A & #8220; correspondence address & #8221; can be indicated if necessary (& #8220;Communication from the President of #8217; EPO of 23 October 1980 relating to the use by applicants not represented by agents of #8217; 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 service is made on a wrong recipient (ie not respecting the conditions mentioned above, e.g. service on the applicant while #8217; he has an agent), service is flawed (R125 (4) EPC and T703 / 92).

L & #8217; EPO must therefore resignify the document if the wrong recipient has not forwarded it to the correct recipient, 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 (e.g. receipt from the registered office).

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 part has not & #8217; reached its & #8220; good & #8221; recipient, there is a defect in service according to R125 (4) EPC.

By & #8220; good & #8221; recipient a person who had the right to receive mail : thus, the delivery of a letter to a person who did not have the right to receive only the personal letters of the agent but not his professional letters must be considered as irregular (J3 / 14).

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