T 0538/20 16-12-2020

Summary of Facts and Submissions

I. The appeal is against the opposition division's decision posted on 2 January 2020 rejecting the appellant's opposition against the European patent No. 2 542 286 entitled "VENTILATION DEVICE".

II. The appeal was filed on 28 February 2020, followed by the statement setting out the grounds of appeal dated 2 June 2020 and received on 3 June 2020.

III. In a communication from the board's registrar issued on 29 June 2020, the appellant was informed that the statement setting out the of grounds of appeal had been filed out of time and that it should therefore expect the appeal to be rejected as inadmissible.

IV. On 30 July 2020 the appellant filed a request for re-establishment of rights with respect to the time limit for filing the statement setting out the grounds of appeal.

V. The appellant (opponent) requested either the re-establishment of rights in respect of the time limit for filing the statement of grounds of appeal, or that the statement of grounds of appeal be deemed to have been received in due time pursuant to Rule 134(5) EPC.

The respondent (patent proprietor) requested that the request for re-establishment of rights be rejected and that the appeal be rejected as inadmissible.

VI. The appellant argued that the Notice from the European Patent Office dated 16 April 2020 concerning the disruptions due to the COVID-19 outbreak (OJ 2020, A43) was applicable to the case in hand and provided for an extension of the relevant time limit until 2 June 2020.

VII. With its request for re-establishment, the appellant submitted that on 2 June 2020 exceptional reasons had prevented it from filing the grounds. At 18.48 hrs on the day of the deadline its in-house representative had started to submit the letter setting out the grounds of appeal via fax using the computer fax equipment installed at the appellant's office. Since the representative had not yet received a confirmation of receipt or a notice that sending had failed, he sent the letter again at 20.27 hrs in the same way. After sending the second fax, the representative left the office. The next day he found two "delivery delayed" reports received at 22.58 hrs (for the first fax) and 00.27 hrs (for the second fax). The representative then informed the appellant's IT expert, who found 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.

The appellant stated that its computer fax equipment was normally configured to send faxes of up to 50 MB. However, the capacity had been inadvertently reduced from 50 to 10 MB when the appellant's telephone system was updated by an external technician between 22 and 25 April 2020; the appellant had not noticed this. Once the IT expert had reset the limit to 50 MB, the letter was sent to the EPO without issue at 11.02 hrs on 3 June 2020. The appellant was of the opinion that it missed the time limit because of a unique and unintended misconfiguration of its computer fax equipment. This isolated error did not change the fact that the appellant had exercised all due care required to meet the time limit.

With a letter dated 8 December 2020 the appellant submitted an affidavit from its representative dated 7 December 2020. The representative declared that the appellant's company, a manufacturer of respiratory equipment, had an important role to play during the COVID-19 pandemic. To ensure employees could continue production while being adequately protected, special safety measures had been taken, including reducing contacts between the company's various divisions and introducing multi-shift operations. Employees also had to limit their presence at the office to certain times, which was why the appellant's representative had had to leave the office after sending the second fax.

The appellant's representative further affirmed that, on the evening of 2 June, he had spoken with the appellant's head of IT on the phone. The representative described how he had assumed 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.

In addition the appellant affirmed that, due to the pandemic, its postal service was considerably restricted until 15 June 2020.

VIII. The respondent argued that the representative had not taken all possible steps to ensure the letter was sent. The representative should not have left the office without having received a notification. Instead he should have tried another way of sending the letter - for example by using a public copy shop or a conventional fax machine, to which he should have had access within the appellant's office building. The respondent also criticised the appellant for having waited until shortly before the deadline to submit the grounds of appeal, meaning that it was also responsible for the fact that technical support was not immediately available.