No second extension of a time limit due to COVID-19

An appeal was filed on 28 February 2020, against the Oppositions Division’s decision as posted on 2 January 2020. The time limit for filing the statement of grounds of appeal was extended until 2 June 2020, according to the Notice from the EPO dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak (OJ 2020, A60). Nevertheless, as the statement setting out the grounds of appeal was received by the EPO only on 3 June 2020, it was deemed filed out of time.

By a letter dated 29 June 2020 the Board informed the appellant (opponent) that the appeal was expected to be rejected as inadmissible due to late filing of the statement of grounds of appeal.

In response, the appellant timely filed a request for re-establishment of rights with respect to the time limit for filing the statement setting out the grounds of appeal, requesting either

1. the re-establishment of rights in respect of the time limit for filing the statement of grounds of appeal, or
2. the statement of grounds of appeal be deemed to have been received in due time pursuant to R.134(5) EPC (dislocation in the locality of a party).

Regarding 1), the appellant argued that on 2 June 2020 exceptional reasons had prevented it from filing the statement of grounds. The in-house representative had started to submit the letter by fax at 18.48 hrs on the day of the deadline. At 20.27 hrs a second fax was sent, as the representative had not yet received a confirmation of receipt or a notice that sending had failed. After sending the second fax, the representative was required to leave the office because of a multi-shift policy of the representative’s company to avoid contacts between the various divisions of the company in light of COVID-19.

On that evening, the representative had called with the head IT on the phone, explaining the situation and describing how he assumed that the EPO’s receipt of the fax was delayed because of the large number of deadlines expiring on that day. The head of IT had agreed and said that nothing could be done in that case because the company's fax was working properly. The head of IT had not been allowed to come to the office because of the restrictions in place.

The next day it became clear that the computer fax equipment used at the representative's office was limited to a maximum file size of 10 MB and that the letter to be sent on 2 June 2020 had a size of 14 MB, attachments included. An external technician that had carried out maintenance in the month before and had inadvertently reduced the capacity from 50 MB to 10 MB. The appellant was therefore of the opinion that it had missed the time limit because of a unique and unintended misconfiguration of its computer fax equipment, i.e., an isolated error that would not change the fact that he had exercised all due care to meet the time limit.

The Board disagreed and concluded that the requirements of all due care were not met:

“Despite there being other ways to send documents to the EPO, for example online filing, the appellant relied solely on the functioning of its computer fax system. Since these technical systems can be prone to faults, this alone makes the board question whether this satisfies the requirements of due care. In any case, the appellant should have checked the configuration of the computer fax equipment after the maintenance work performed by the external company in April 2020.”

Moreover, “the case law of the boards on isolated errors in a normally satisfactory working system does not apply in this case. This case law was developed for deadline monitoring systems and requires further safety mechanisms or monitoring systems to be installed.”

The request for the re-establishment of rights therefore had to be rejected.

Related to the second request, the appellant had declared that at 2 June, the Covid-19 limitations in the country were not yet resolved. Instead, due to the pandemic the postal service was considerably restricted until 15 June 2020 and therefore the time limit should have been extended further.

The Board disagreed again, stating that “the appellant is looking to have the late filing of the statement of grounds of appeal excused on account of the impact of the COVID-19 pandemic. However, this was why time limits had already been extended until 2 June 2020 by the aforementioned Notice from the European Patent Office dated 1 May 2020 concerning the disruptions due to the COVID-19 outbreak. The board sees no reason for any further extension.”

The request for the re-establishment of rights therefore had to be rejected. Consequently, the appeal had to be rejected as inadmissible.

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