2.5.1 Electronic filing of appeal

The EPO's online filing systems can be used to file notice of appeal and all subsequent documents (see decision of the President concerning the electronic filing of documents dated 14 May 2021, OJ 2021, A42). Art. 3 of the President's decision dated 3 March 2021, however, rules out using the Web-Form Filing service in appeal proceedings.

In T 1633/18 the applicant submitted both the notice of appeal and a further letter by using the EPO Web-Form Filing service. The board stated that this service could not be used for filing documents in respect of appeal proceedings (see Art. 3 of the decision of the President of 14 May 2021, OJ 2021, A42). If documents in respect of appeal proceedings were nonetheless filed using the EPO Web-Form Filing service, they were deemed not to have been received. In such a situation the sender, if identifiable, should be notified without delay. In the case in hand, the EPO did not notify the applicant in conformity with this provision. Since both letters had been received well before the expiry of the respective time limits (for filing the appeal and for filing a statement of grounds of appeal), by not observing its duty to inform the appellant without delay, the EPO deprived it of the opportunity to resubmit its letters by a correct means of filing. As the appellant resubmitted its letters in a correct manner in reply to the board's communication pursuant to R. 100(2) EPC and as the EPO failed to notify the appellant of its incorrect use of the Web-Form Filing service, the appellant had to be treated, in accordance with the principle of the protection of legitimate expectations, as if it had submitted these letters in a correct manner before the expiry of the respective time limits. See also T 1295/20, in which the board held that the principle of the protection of legitimate expectations was to be applied where the deficiency – in the case in hand: the appellant's address had been filed via Web-Form Filing – could be readily identified by the EPO in the course of its normal handling of the case at the procedural stage in question and could still be corrected by the appellant in time.

The decisions reported below relate to cases settled before the previously applicable President's decision of 10 November 2015 concerning electronic filing of documents (OJ 2015, A91) entered into force (on 16 November 2015).

Under Art. 108 EPC 1973, notice of appeal was filed in writing. Art. 108 EPC was amended when the EPC was revised. It now requires appeals to be filed in accordance with the Implementing Regulations (see R. 99 EPC). Thus an appeal filed via electronic means (epoline^®), not being "in writing" was rejected as inadmissible in T 781/04 of 30 November 2005 date: 2005-11-30 and T 991/04 of 22 November 2005 date: 2005-11-22, referring to the EPO Notice dated 9.12.2003 concerning the My epoline^® portal. Referring to T 781/04 date: 2005-11-30, T 991/04 date: 2005-11-22 and T 514/05 (OJ 2006, 526), the board in T 765/08 stated that documents purporting to be documents filed subsequently for the purposes of R. 2(1) EPC (here the notice of appeal) must be deemed not to have been received if they are filed by technical means not approved by the President of the EPO. This applies even if the means of transmission is subsequently allowed (T 331/08, following T 514/05); the board was not entitled to exercise discretionary power to consider whether the appeal, filed via epoline^®, might nonetheless be deemed to have been filed, since i) to do so would be tantamount to exercising legislative power; 2) such legislative power was however clearly delegated in R. 36(5) EPC1973 to another authority within the EPO, namely the President; 3) thus pursuant to Art. 23(3) EPC1973 the board was precluded from examining whether this purported notice of appeal could be deemed to have been received, since such a procedure would be ultra vires; 4) it was immaterial that this means of communication was now permitted for the filing of appeals. It was the law and instructions in place at the time of filing which had to be applied. The board in T 1090/08 also found the appeal inadmissible, but on the facts of the case granted re-establishment of rights.

In T 1427/09 of 17 November 2009 date: 2009-11-17 the notice of appeal and statement of grounds were filed in due time but the electronic signatures were not issued to a person authorised to act in the proceedings, in contravention of Art. 8(2) of the decision of the President concerning the electronic filing of documents (OJ 2009, 182), which was silent on the legal consequences of non-compliance. The board held that the principle that the signature of an unauthorised person should be treated like a missing signature, as set out in T 665/89, should apply not only to handwritten signatures, but also to electronic signatures. The electronic filing of a document in appeal proceedings accompanied by the electronic signature of an unauthorised person should therefore be treated under R. 50(3) EPC like the filing of an unsigned document per mail or telefax in the same proceedings.