S. Notifications
4. Spheres of risk and apportioning the burden of proof
Under R. 126(2) EPC, in the event of any dispute, it is incumbent on the European Patent Office to establish that a letter has reached its destination or to establish the date on which it was delivered to the addressee, as the case may be. In cases where the EPO is not able to prove the actual date of notification, a letter, for instance, sent by the addressee himself which indicates the date of receipt is accepted as proof. If it is evident from an addressee's reply that he has received the document, although he does not mention the date of its notification, the date on which that reply was written is to be regarded as the date of notification (Guidelines E‑II, 2.6 – March 2022 version, regarding R. 125(4) EPC). The risk associated with electronic notification under R. 127 EPC is apportioned in the same way.
In T 1535/10 the board held that responsibility for obstacles to and delays in the receipt of decisions to be notified under R. 126(1) EPC had to be assigned according to spheres of risk. The Office was liable for both the risks arising in its own sphere and "transport risks". However, it distinguished such risks from those within the recipient's sphere of organisation and influence, e.g. the risk that employees or other authorised recipients failed to forward a letter delivered to the business address, or delayed in doing so. For a presumption that a letter had entered the recipient's sphere of organisation and influence, it sufficed that it had been delivered to his address and that he was in a position to take note of it, irrespective of whether he had actually taken (final) possession of it and noted its content (see also T 580/06).
In J 14/14, in keeping with the bulk of the boards' case law, the Legal Board held that it was clear from the wording of R. 126(2) EPC that, in the event of any dispute as to whether a notification had been received by the addressee, the onus was on the EPO to establish the fact and date of delivery. In the case in hand, the only proof of delivery that the EPO had in respect of the communication in question was a letter from Deutsche Post, referring to a registered letter sent to the appellant's representative and stating that it had been delivered to a person authorised to receive it. This was deemed insufficient to fulfil the requirements of R. 126(2) EPC since there was no proof that the appellant's representative or any other named individual had signed a document acknowledging receipt of the letter and no communication from the foreign postal service was disclosed (see also J 9/05 and J 18/05, where a similar confirmation letter by Deutsche Post was held not to be sufficient to prove the receipt of an EPO notification since the appellant had filed a considerable amount of counter-evidence and pointed out specific reasons why the letter might not have been received by the representative's office). See also T 691/16.
In T 529/09, however, the board held, distinguishing the case in hand from J 9/05 and J 18/05, that unlike in these cases, the appellant had not submitted any further arguments or evidence in order to demonstrate that the Deutsche Post's confirmation had failed to establish that the registered letter had reached its destination. The evidence on file therefore had to be regarded as sufficiently reliable and complete for proving the proper delivery of the letter (see also T 1304/07, T 1934/16).
In T 247/98 the board stated that when establishing the meaning of the term "im Zweifel" in the German version of R. 126(2) EPC, account should be taken of the French and English versions, which assume that there is a dispute ('en cas de contestation', 'in the event of any dispute'). A dispute ('Zweifel', literally 'doubt' in the German version) within the meaning of this rule could only arise if it was maintained that a letter had in fact been received more than ten days following its posting. The mere absence of the advice of delivery or the receipt from the file was not in itself sufficient to give rise to a dispute ('Zweifel') within the meaning of this rule. In T 2054/15 the board stated that the burden of proof on the EPO could not be taken to mean that the party was under no obligation to help clarify the circumstances within its own sphere of responsibility
As regards differences in the signature on the advice of delivery recording that notification is effected, the board in T 691/16 pointed out that notification did not necessarily have to be effected by means of delivery to the actual recipient, but could also be effected by means of delivery to people living in the building or with the necessary authorisation. That was generally what happened at companies. There was therefore no reasonable doubt that the intervener had received the notice of action as claimed.
- T 1529/20
Abstract
In T 1529/20 the appellant (proprietor) submitted that they had never received the decision of the opposition division revoking their patent and that they had only become aware of it and, more generally, of the opposition proceedings, through an email from a formalities officer of the EPO.
The board explained that with the abolition of advices of delivery for notification of decisions by registered letter (see OJ 2019, A31), it was the practice of the EPO at the time to enclose an acknowledgement of receipt (Form 2936) with notifications by registered letter of decisions incurring a period for appeal and summonses. Addressees were requested to date and sign the form and return it immediately, as evidence of receipt (see OJ 2019, A57).
The board established that the present file did not contain a confirmation of receipt of the decision of the opposition division from the appellant. Since the EPO could not prove whether the registered letter had reached the appellant, as required by the provisions of R. 126(2) EPC in force at the relevant time, it had to be accepted that the legal fiction of deemed notification did not apply and the appellant became aware of the appealed decision for the first time with the email from the formalities officer. This date was therefore the date of notification of the decision. Thus, the appeal was timely filed.
With regard to the right to be heard, the board held that, as argued by the appellant, the missing opportunity to present their arguments during the opposition proceedings amounted to a substantial procedural violation (Art. 113(1) EPC).
The board observed that, even in view of the notice of the EPO concerning implementation of amended R. 126(1) EPC (OJ 2019, A57) – which did not require to enclose an acknowledgement of receipt (Form 2936) with the communication of the notice of opposition – the requirements of Art. 113 EPC had to be complied with. Before a negative decision revoking a patent was issued, it had to be established that the patent proprietor had been duly informed about the initiation of opposition proceedings. The board explained that the notice of the EPO merely determined the format of notifications. However, the provisions of R. 126(2) EPC remained unaffected. R. 126(2) EPC defined a rebuttable fiction of notification, which, in case of dispute, had to be verified. The burden of proof lied with the EPO.
The board agreed with the appellant that a party submitting that something had not happened, i.e. that a communication had not been received, was in difficulties in trying to prove a negative (negativa non sunt probanda, see also T 2037/18, R 15/11, R 4/17). The filing of cogent evidence showing that a letter was not received was hardly ever possible (see also J 9/05). Therefore, the respondent's arguments that the appellant allegedly had the duty to register mail incoming at their premises but failed to provide an excerpt of such register was not pertinent, since there was no trace in the file that the EPO discharged its burden of proving delivery. Under such circumstances, the appellant did not have to bear the risks normally falling in their sphere of responsibility (T 1535/10), so that they have to be given the benefit of the doubt (J 9/05).
According to the board, in the present case legal certainty and the protection of the right to be heard would have required that the opposition division had established, by any available means, the fact and date of delivery of the communication of the notice of opposition.
The patent proprietor could decide not to react to the notice of opposition. Nevertheless, the communication under R. 79(1) EPC was not a mere formality. Rather, it had the function of allowing the patent proprietor to both contribute to the opposition division's appreciation of the facts and to defend their interests. Since the initial act of (non-)notification of the notice of opposition was flawed, the entire opposition proceedings including the decision of the opposition division was flawed.
Thus, the board set aside the appealed decision and remitted the case to the opposition division for further prosecution. The appeal fee was reimbursed.