1.1. Notification by postal services

In R. 126 EPC, and also in R. 125(2) EPC and R. 133(1) EPC, references to "post" have been replaced by "postal services" and "postal service providers" in 2015. This gives the Office the freedom to choose any postal service provider it regards as suited to serving notification.

In view of the low return rate of advices of delivery and the notable administrative burden associated with their processing, R. 126(1) EPC was amended by Administrative Council decision CA/D 2/19 (OJ 2019, A31) to remove the requirement to notify by registered mail with advice of delivery. Decisions incurring a period for appeal or a petition for review, summons and any notice or other communication triggering a time limit must instead be notified by registered letter, if not notified electronically. Amended R. 126(1) EPC came into force on 1 November 2019.

In T 1693/13, the EPO had notified the contested decision using courier service UPS before R. 126 EPC as amended had entered into force. The board held that the appellant had been entitled in the circumstances to assume that the UPS courier service was treated as "post" within the meaning of R. 126 EPC as then still in force and that it made no difference to how the appeal period was determined under that provision whether a decision had been sent by post or by UPS. In contrast, in G 1/14 (OJ 2016, A95) the Enlarged Board took the view that old R. 126(1) EPC related solely to notification by post using a "registered letter with advice of delivery" and not to any other kind (by UPS in the case in hand). See also chapter V.B.2.3.3.

In J 9/96 the Legal Board of Appeal held that notification of a communication posted as an ordinary letter in accordance with R. 78(2) EPC 1973 (no longer applicable since 1.1.1999) was deemed to have been made when despatch had taken place. However, if the communication did not reach the addressee and was not returned to the EPO, the legal fiction of deemed notification could not be applied, unless the EPO could establish that it had duly despatched the communication (see also J 27/97 and J 32/97). On the question of apportioning the burden of proof and spheres of risk in connection with notification irregularities, see in this chapter III.S.4.

In T 1596/14 the board noted in obiter dictum that there was no evidence or indication that the alleged unequal treatment of the parties induced by different dates of notification of the same decision had been detrimental to any party's interests. There did not appear to be any consequences for the admissibility of the appeals or for the due course of the ensuing appeal proceedings. The board noted that there was no specific sanction or remedy foreseen in the EPC for this situation and it seemed to the board that it was difficult to assume that appellant I's suggestion to re-send the decision with a new common notification date would be a remedy, since the parties in the case in hand were already aware of each other's arguments.