b) Observance of the time limit – filing by fax 

In T 2061/12, the board noted that the case law of the boards of appeal distinguished between fax parts received before and after midnight, according the different filing dates (T 683/06, T 2133/10; decision of the President of the EPO dated 12 July 2007, OJ SE 3/2007, 7, in force at the relevant time, now superseded by the decision of the President of the EPO dated 20 February 2019, OJ 2019, A18). In this case, only the last page and possibly part of the penultimate one had arrived after midnight, while Form 2300 signed by the patent agent, the payment form and at least the first two pages of the notice of opposition – which at a minimum substantiated a novelty objection – had all certainly reached the EPO before midnight. The opposition had therefore been filed in due time under Art. 99(1) EPC; it also complied with R. 76(1) and (2) EPC. It was therefore admissible (R. 77(1) and (2) EPC). See also T 2317/13.

However, in T 858/18 the board held that if a facsimile transmission of a document within the meaning of R. 50(3) EPC begins on an earlier date and extends beyond midnight to a later date, the entire document is accorded the later date as the single date of receipt. The board found that the decision of the President of the EPO dated 12 July 2007 concerning the filing of patent applications and other documents by facsimile (OJ SE 3/2007, 7; now superseded by the decision of the President of the EPO dated 20 February 2019, OJ 2019, A18) provided no legal basis for according the earlier date as the date of receipt for the part of the document arriving at the EPO before midnight. The term "document" referred to the record of a complete unit of information.

The board in T 2307/15 (regarding a statement setting out the grounds of appeal received by fax) did not follow this approach, but confirmed the approach taken in T 2061/12 and T 2317/13 (for a more detailed abstract of T 2307/15, see chapter V.A.2.6.).