T 0128/87 (Lost cheque) 03-06-1988

1. Under Art. 108 EPC, second sentence, the admissibility of the appeal is dependent upon whether the fee for appeal was paid on time. Since payment is said to have been made with a cheque having the final number 866 enclosed with the letter of appeal, in accordance with Art. 8(1)(c) RFees what matters is whether that cheque was actually so enclosed.

2. If, alternatively, re-establishment of rights were possible and allowable the difficult task of proving that a particular document reached the Office by a decisive date could then be dispensed with. This is not the case here, however, since under Art. 122(1) EPC the appellant is denied the possibility of having his rights re-established for the purpose of enabling the appeal to be deemed to have been lodged within the period laid down.

3. The present case can therefore be decided only on the basis of evidence produced. Despite all the Board's inquiries the cheque could not be found. The only form of evidence in favour of the party presenting the cheque is that from the overall circumstances of the case it may be deduced that there is a high probability of the cheque having actually been enclosed with the notice of appeal.

4. The first question which has to be asked is whether evidence of the receipt of certain documents at the EPO by a legally important date can in any case be allowed to rest on the more or less high probability of such receipt. The appellants cite Decision J 20/85 "Missing claims/ZENITH" (OJ EPO 1987, 102). In the Board's view that decision concerns a special case which cannot be generalised. The matter at issue was maintenance of the date of filing within the meaning of Article 80 EPC safeguarding the priority of a European patent application, even though there was doubt as to whether the set of 15 claims prepared had also actually been enclosed with the application. Article 80(d) EPC requires that at least one claim, i.e. any claim, be enclosed; in the decision it was accepted on the basis of a line of argument serving as proof, i.e. on the balance of probability, that the 15 claims had been enclosed with the application.

5. In the present case it is not a matter of proving whether the description, the claims or the drawings to a European patent application were at hand or what they contained. It is therefore not a question of proving whether and with what content the filing of a document took place., i.e. whether there was disclosure within the meaning of Art. 83 or Art. 123(2) EPC and of what nature. Here it is only a question of whether another kind of act safeguarding a time limit was carried out on time. With acts of this kind the Board of Appeal dealing with the matter has already held provision of proof to be possible in principle in other cases, namely in the "Lost statement of grounds of appeal/AUDI" case (T 243/86 dated 9 December 1986, not published) and the "Lost telex confirmation/RENK" case (T 69/86 dated 15 September 1987, not published). If in such cases re- establishment of rights is not possible, provision of proof by establishing probability is the only way to determinethat the act was performed on time.

6.1 Proof of this kind can of course only seldom lead to absolute certainty; but it must at least show there to be a high degree of probability that the event in question took place. In the "Lost statement of grounds of appeal" and "Lost telex confirmation" cases mentioned, the Board was able to find concrete trace of the items sought, which did not show for certain but nevertheless indicated a very high probability of the lost documents having once been in the Office. In the case of the "Lost statement of grounds of appeal" it was the envelope, which could not have been used for any other purpose, while in the case of the "Lost telex confirmation" it was the existence of a debit order made at the same time and bearing impress marks which, to go by their position, size and shape, could be attributed to the staple holding together the telex confirmation consisting of two sheets. The copy of the telex confirmation submitted justified this assumption.

6.2 In the present case the Board instituted its own detailed enquiries within the Office and also questioned the applicants extensively about their working procedures at their own offices. In the course of these enquiries, however, the Board only came to the conviction that a cheque ending in the number 866 had been made out before the letter of appeal had been submitted; it could detect no reason to assume that the probability of the cheque having been lost in the Office was any greater than that of the appellants having inadvertently failed to enclose it with the notice of appeal.

7. In such a situation the impossibility of furnishing proof must in principle go against the party doing the filing. Otherwise a subsequent and non-refutable assurance that a document had indeed been submitted or that a particular enclosure had been attached would always suffice to demonstrate that an act for which there was a deadline had been performed on time. The parties doing the filing have various possibilities - depending on the individual case - for ensuring that their documents are filed on time and are complete and for securing proof thereof. The Office too helps in this connection by offering acknowledgement of receipt by means of EPA/EPO/OEB Form 1037 (see also notice in OJ EPO 1985, 289). Naturally the use of this form is not compulsory. However, the measures which the appellants took to ensure that their documents arrived on time and complete and also to secure the appropriate proof - measures which do not need to be described in more detail here - do not appear to the Board to be such as to prove the cheque was actually filed; nor do they make the likelihood of it having been filed considerably greater than that it was not.

8. The general burden of proof falling on the party doing the filing with regard to the completeness of the documents he submits is not altered in any way even if the Office does not immediately inform him that they were incomplete, thus making it possible to remedy the omission within any remaining period still available. When documents and enclosures reach the Receiving Section, the Office does not of its own motion check that the items are complete or free from deficiencies. It can therefore happen that when items are filed the fact that the something is missing goes unnoticed and is not brought to the attention of the party doing the filing. The subsequent checking of certain items by the formalities officer should of course also serve to reveal in time any deficiencies which may still be remedied within the periods available. This applies under Rule 56(1) EPC with respect to the opposition, and under Rule 65(1) EPC with respect to the appeal. But such checks cannot be carried out immediately upon filing. Any question of the Office having some responsibility for the fact that a deficiency was not discovered early enough can only arise if a reasonable processing time has been exceeded and also if by virtue of the actual circumstances of the case some responsibility clearly accrues to the Office. With regard to the latter point, it has firstly to be said in the present case that the appellants did not draw up their notice of appeal in such a way that it was immediately recognisable as such, nor make it obvious that enclosure of a cheque was intended. The appellants therefore did not do enough to make their notice of appeal stand out optically from the other, much more numerous, communications which are filed in procedures before the EPO. Consequently, in the present case there are no circumstances that would in any way alter the appellants' obligation to furnish proof that the item submitted was complete.

9. In all honesty, however, it cannot be denied that the Office shares some of the responsibility for the fact that the cheque was not found to be missing in time when it is considered that - as in the present case - 28 days elapsed in the course of which payment would still have been possible, and bearing in mind that within that period neither the formalities officer in Directorate-General 2 nor his opposite number in Directorate- General 3 discovered the deficiency. In view of the Office's share of responsibility here for the fact that a cheque was not subsequently filed in the 28-day period in which that would have been possible, it would be unfair in this case too if the party doing the filing were to be penalised for being unable to furnish proof. It must therefore be assumed in their favour that the cheque was enclosed with the notice of appeal.