Pages 444-445

INFORMATION FROM THE EPO

Termination of the Administrative Agreement between the DPMA and the EPO concerning receipt of documents and payments

In a judgment dated 23 November 2004 (11 W (pat) 41/03), the Federal Patents Court ruled unlawful the provision in the "Administrative Agreement dated 29 June 1981 between the German Patent Office and the European Patent Office concerning procedure on receipt of documents and payments", as amended on 13 October 1989 (OJ EPO 1981, 381; 1991, 187; BlPMZ (= OJ DPMA) 1981, 278; 1989, 373), stipulating that the date of receipt of documents filed with the EPO but intended for the DPMA is the date on which they were received by the EPO.1 The judgment has now become final.

In view of this, the German Patent and Trademark Office (DPMA) stopped applying the Administrative Agreement on 1 March 2005, since when the filing date of documents intended for the DPMA but received and forwarded by the EPO has been the date of their actual receipt at the DPMA.2

Following talks between the Presidents of the DPMA and EPO3, both offices have agreed, in the interests of legal certainty, that in the light of the Federal Patents Court judgment the Administrative Agreement should no longer be applied.

Accordingly, from 1 September 2005 the EPO too will stop applying the Administrative Agreement and, in line with the DPMA's new practice, the filing date of documents intended for the EPO but received and forwarded by the DPMA will be the date of their actual receipt at the EPO.

Both offices will continue their postal exchange of documents received in error (to avoid further delays by returning them to senders), but as a courtesy service and with no guarantee that it will occur within such time limits as may apply. The same applies to payments received by post at the wrong office.

If a time limit is missed as a result of misdelivery, in many cases legal remedies (further processing and re-establishment of rights) will be available.

We recommend that items – especially those subject to time limits – be filed in ways which minimise misdelivery risks (online, by fax, in person, or using the relevant office's night letter-box). And to help ensure that payments reach the right office in good time, parties can authorise direct debit (DPMA) or use a deposit account (EPO).