J 0005/84 (Computer fault) 29-05-1985
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Computer fault
Date on which payment is considered to have been made
Computer fault at a bank where the EPO holds an account
Summary of facts and Submissions
I. The appellant filed European patent application No. 8345007.6 on 17 March 1983 claiming a French priority of 17 March 1982. The filing, search and designation fees were due on 18 April 1983, 17 April being a Sunday. Payment not having been made by that date, the applicant's professional representative was informed that under Rule 85a he still had a two-month period of grace from 18 April 1983, provided he paid 50% surchage. Pursuant to Rule 85(1) this period expired on 20 June 1983, 19 June also being a Sunday. The amount of the fees and surchage was not credited to a European Patent Office bank account until 21 June 1983.
II. In a communication dated 13 July 1983 the European Patent Office's Receiving Section notified the appellant in accordance with Rule 69(1) EPC that his patent application was deemed to be withdrawn since the fees had not been paid within the time limits. The appellant stated that on 15 June 1983 he had sent a cheque for FF 12 340 (in respect of the fees plus surchage) to the Banque Nationale de Paris (BNP), Agence France Etranger, which had duly received it on Friday, 17 June 1983, but had not credited it to the Office until the following Tuesday, 21 June 1983. This is confirmed by a letter dated 8 August 1983 from the BNP. In a telex dated 5 October 1983 the bank points out that it was itself responsible for this delay, which was due to a fault in its computer. In a decision given under Rule 69(2) EPC on 22 November 1983 at the applicant's request, the Receiving Section took the view that the European patent application must be deemed to be withdrawn since Article 8(1)(a) of the Rules relating to Fees does not allow any date other than that on which the amount of the payment is entered in a bank account held by the Office to be considered as the date of payment.
III. This decision was notified on 30 November 1983 and the appellant filed an appeal against it...
IV.Questioned by the rapporteur of the Board of Appeal, the BNP stated in a letter dated 17 April 1985, followed up by a telex dated 6 May 1985, that the incident involving the computer on 20 June 1983 had been totally unforeseeable and had made the amount paid temporarily unavailable not only to the payee -the EPO- to whom it could not be credited, but also to the issuer - the appellant - , who would not have been able to have his cheque returned if he had requested it.
Reasons for the Decision
A. ....
B. Discussion of the merits
1. Articles 5(1)(a) and 8(1)(a) of the Rules relating to Fees indicate clearly that where payment is made by transfer to a bank account held by the Office -as in the present case- the said payment is considered to have been made only on the date on which its amount "is entered in a bank account" held by the payee; in this case, 21 June 1983, whereas the time limit expired on 20 June.
2. The formal exception to that principle in Article 8(3) of the Rules relating to Fees cannot be invoked here since it applies only where payment was initiated "not later than 10 days before the expiry" of the period, which was not the case.
3. In an earlier Decision, however, the Legal Board of Appeal, interpreting Article 8(1)(a) referred to above, ruled that "the date on which a payment shall be considered to have been made ... can include the date on which the EPO is advised by a bank which holds an account in the name of the European Patent Organisation that the payment has been received, even though the payment is not entered in the account until after that date, provided that, once the EPO has been so advised, the payer can no longer revoke his payment and provided also that the EPO immediately has the right to dispose of the moneys paid". (J 26/80 dated 13 November 1981. OJ (EPO) 1/1982, p. 7).
4. In a later Decision, a Technical Board of Appeal ruled that a legal situation equivalent to the crediting of a Post Office Giro account held by the Office obtained when, in view of the particular circumstances, the amount of an opposition fee had been paid in in such a way that it was impossible for it to be withdrawn by the issuer or antedated (T 214/83 dated 3 September 1984, OJ EPO 1/1985, p. 10).
5. These two Decisions are supported not by the letter but by the spirit of Article 8(1)(a) of the Rules relating to Fees, the principle of which is also contained in other provisions of the same Article and in particular 8(1)(c), which specifies as the date of payment the date on which a cheque is received and not that on which it is "met". The authors of the Convention intended that, in principle, payment should be considered to have been made only from the moment when the sum is virtually in the possession of the EPO and the issuer can no longer dispose of it. The provision whereby the date on which payment is considered to have been made is that on which it is "entered in a bank account or a Giro account..." must be regarded as essentially of an administrative nature and designed to facilitate the efficient running of the EPO's accounts. The words "the date on which the amount of the payment or of the transfer is entered in a bank account or a Giro account" should not therefore be interpreted too narrowly. The Board further believes due consideration should be given to the fact that, when the Rules relating to Fees were drawn up, modern EDP techniques now commonly used by banks could not have been taken into account in all their ramifications.
6. This interpretation of the Rules relating to Fees does of course presuppose that the applicant has taken every reasonable step to ensure that payment was made in due time. However, it would be excessive to apply the provisions of Article 8(3) -which obviously were not designed for such a situation- when payment is made to a bank at which the EPO holds an account.
7. A cheque sent on a Wednesday to a bank at which the Office holds an account and arriving, as in the present case, on the Friday of the same week ought normally to have been credited to the payee on the following Monday at the latest. The delay in the performance of this operation was undoubtedly caused by a totally unforeseeable fault in the computer. Moreover the bank has stated clearly that throughout the period when this computer was not working the applicant would have been unable to withdraw his order and dispose of the amount due for payment. The payment must therefore be considered to have been made in due time.
8. Consequently, the appeal must be allowed and the decision of the Receiving Section dated 22 November 1983 set aside.
ORDER
For these reasons, it is decided that:
1. ...
2. The decision of the Receiving Section dated 22 November 1983 is to be set aside.