J 0002/22 - Legal incapacity of an individual inventor/applicant/appellant

Background

In 2017, an international application was filed by an inventor/applicant (a private individual) who was at the time represented by a professional representative according to Art. 134 EPC. Upon entry into the European phase (July 2019), the Receiving Section of the EPO informed the applicant that a request for examination had to be filed and that the corresponding fees had to be paid or that otherwise the European patent application would be deemed withdrawn. 

The applicant did not respond in time and therefore received a notification of a loss of rights with information on the possibility to request further processing. On the last day of the further processing period, the applicant, no longer being represented by a professional representative (in line with Art. 133(1) EPC), filed a request for examination. The fees for examination including the further processing fee, however, were received by the EPO only two days later. In November 2019, the EPO therefore invited the applicant to provide evidence that the fees were paid on time. 

No such evidence was filed, and the EPO in January 2020 reminded the applicant twice. Only in March 2020, the applicant looked at one of those reminders and claimed (on the phone) that he had not received the original communication from November 2019. A statement of his bank regarding the payment of the fees was shortly thereafter submitted. 

A few weeks later, the Receiving Section sent out a communication that the time limit for responding to the communication from November 2019 had expired in February 2020. Hence the bank statement had been submitted too late. The applicant was requested to confirm in writing that he had not received the communication in November 2019. This was requested by the Receiving Section with the underlying motivation to potentially start an investigation whether the communication in November 2019 that triggered the time limit in February 2020 had been validly notified on the applicant. 

The applicant complained via email that “every time I provide the requested evidence, I am being told that my evidence is out of time after not being informed in time about this in a way that is helpful to me". He blamed this on the fact that he was not an attorney. 

Meanwhile the applicant had confirmed that he had found the communication of November 2019 and an internal investigation had shown that he had signed a confirmation receipt of the communication in November 2019. Based on this, the Receiving Section concluded that the communication had been duly effected and that the time limit for replying thereto had expired before the requested evidence had been filed. 

In October 2020, the Receiving Section announced their intention to issue a decision rejecting the request for further processing, and gave the appellant the opportunity to respond within two months. 

The applicant replied with an overview of his medical history allegedly showing that he was legally incapacitated, at least during the period of  November 2019 to January 2020. He had been diagnosed with multiple serious medical conditions, which had the effect that he could enter fairly suddenly and without warning into periods of diminished cognitive capacity, making management of day-to-day correspondence difficult. Applicant argued that according to Rule 142 EPC, the proceedings should have been interrupted. 

In January 2021, the Legal Division asked for further evidence supporting the claimed legal incapacity. They set a time limit of two months and communicated that in the meantime, the proceedings would not be interrupted. The Legal Division and applicant exchanged several communications but in the end no decision on the request for interruption of proceedings was taken by the Legal Division. 

Meanwhile, the Receiving Section announced their decision: no request for further processing had been filed as the fees had not been paid in time. Therefore the application was deemed to be withdrawn and the fees were to be refunded. 

Appeal

The applicant/appellant (A) filed an appeal against the decision of the Receiving Section. The decisive question appears to be whether the notification in November 2019 had been validly notified to A. If A was legally capable, then the notification was received and the time limit for producing evidence for the timely fee payment was triggered. As a consequence, missing the payment would in that case lead to the situation where the period for payments was considered not to have been observed (Art. 7(4), RFees). On the contrary, if A was legally incapable, then the proceedings needed to be interrupted and the notification would not have been duly received.

The Board deals with the case. A summary is provided by the catchwords of the decision:

Catchwords

• The notification of a communication or decision on a person who does not possess legal capacity and who is not properly represented is null and void, as are procedural acts involving or performed by such person.
• Legal incapacity of a person means that they are suffering from a disturbance of their mind which makes them unable to act on their own in proceedings before the EPO. Legal (in-)capacity is to be assessed ex officio, and it requires a reliable medical opinion.
• There is a general presumption in favour of legal capacity of a natural person appearing as party or representative before the EPO, but this presumption no longer holds if there are indications to the contrary, in particular from this person's conduct in the proceedings.
• The standards of assessing legal capacity regarding natural persons are the same as those regarding professional representatives, as only unified standards according to the autonomous law of the EPC can guarantee equal treatment of the parties.
• Proceedings before the EPO are to be interrupted in the event of legal incapacity of an applicant or proprietor, and are to be resumed with the person authorised to continue.
• From the mere fact that the Legal Division is responsible for entries in the European Patent Register, with the dates of interruption or resumption of proceedings being among the entries to be made in the register, it cannot be derived that the Legal Division would also be responsible for the decision to interrupt themselves.
• The allocation of tasks among the first-instance departments of the EPO by a decision of the President of the EPO presupposes the competence of the first instance, and cannot in itself establish a continuing competence of the Legal Division with regard to interruption during appeal proceedings, where the boards have exclusive competence.
• When the first-instance proceedings are declared null and void by the board, they are to be resumed and continued with a representative to appoint, and with further notifications to make on that representative.
• The concept of the appointment of a representative for legal proceedings is inherent in the system of the EPC, and can, as a matter of principle, be applied to any case where a representative is essential to guarantee the participation of a legally incapable person as party and thus a fair trial.

Decision

In the case at hand, it was decided that A was legally incapacitated and that therefore the proceedings were interrupted, starting from the date of the communication in November 2019. 

However, “when proceedings are declared null and void (and interrupted) by a board, because of legal incapacity of an appellant, the case is to be remitted to the first instance, for the first instance