Article 120

EUROPEAN PATENT OFFICE

Information from the EPO

Notice from the European Patent Office dated 22 October 2020 concerning the procedures and safeguards which apply under the EPC and the PCT in the event of outages of means of electronic filing and other online services

I. BACKGROUND

A. Purpose and scope of notice

1. The means of electronic filing currently provided or authorised by the EPO under Rule 2(1) EPC and Rule 89bis PCT are Web-Form Filing, Online Filing (OLF), New Online Filing (CMS), ePCT and fax.1The EPO also provides online services relating to other aspects of the patent grant procedure, such as the European Patent Register, Online Fee Payment (OFP) and credit card fee payment.2

2. In order to improve its online services for users, the EPO carries out regular maintenance work which may affect the availability of these services at certain times.

3. The present notice sets out the procedures and safeguards that apply in the event of the unavailability of the EPO's means of electronic filing (paragraphs 20-36) or fee payment tools (paragraphs 37-42).

4. This notice replaces the notice from the EPO dated 18 January 2018 on this topic (OJ EPO 2018, A25).

5. In this notice, any reference to the time or day on which an event occurs should be understood as referring to the time zone applicable at the EPO's Munich site, Central European Time (CET).

B. Informing users of outages

6. The EPO undertakes to inform users in a full and timely manner about outages of its online services, including the means of electronic filing and making payments, through announcements on a dedicated section of epo.org.

7. A distinction is drawn between planned and unplanned outages. Planned outages may for instance be due to maintenance work on or improvements to a service and will be announced at least two working days in advance. Unplanned outages, which are generally due to malfunctions or other exceptional circumstances, will be announced as soon as possible upon discovery of the issue. The initial announcement will be regularly updated until the service is restored. A more detailed announcement will be published if the service remains unavailable for a longer period of time.

8. All outage announcements are allocated a reference number. Users should quote this number when communicating with the EPO about a specific outage. Users are advised to check the EPO website regularly for announcements of planned outages.

9. A list of all previous outages of online services and means of electronic filing, as well as minor technical incidents, is available on the dedicated section of epo.org. This list is updated regularly. Information on outages is archived and kept for at least 20 years.

C. Scheduling of outages due to maintenance

10. To avoid outages on days on which the EPO is open for the receipt of documents and payments, maintenance work on online tools will wherever possible be carried out at the weekend, starting after midnight on Friday. Wherever possible it will be limited to one filing tool at a time.

11. With regard to the European Patent Register, the EPO will wherever possible avoid carrying out maintenance work on the last day for validation of European patents in the contracting states. In other words, as far as possible, maintenance work will not take place on the day of the week on which, three months before, the weekly mention of grants was published in the European Patent Bulletin (Article 65(1) EPC).

II. EXTENSION OF PERIODS UNDER RULE 134(1) EPC

12. Where an outage of at least one of the means of electronic filing under Rule 2(1) EPC occurs on the last day of a period for performing procedural acts for Euro-direct applications or Euro-PCT applications in the European phase ("Euro-PCT applications"), the period is extended to the first working day on which all means of electronic filing are available.

13. The occurrence of such an outage is determined by the EPO's technical services. Not every technical problem qualifies as an outage attributable to the EPO, so not every technical problem will lead to the extension of a period under of Rule 134(1), second sentence, EPC.

14. Where the EPO establishes that an unplanned outage of a means of electronic filing under Rule 2(1) EPC has occurred and that it affects all users, then all periods expiring on the date of the outage are extended under Rule 134(1), second sentence, EPC for all users. An updated announcement to that effect will be published on the dedicated section of epo.org. The extension of all periods due to an outage of a means of electronic filing affecting all users applies regardless of any restrictions on the documents which may be filed by the means of electronic filing that suffered the outage.3

15. Rule 134(1), second sentence, EPC is applicable only to periods within the meaning of Article 120 EPC. According to established principles of procedural law, a period involves a fixed number of days or months for accomplishing a procedural act. The safeguards outlined in this notice do not, however, apply to procedural acts which must be performed under specific conditions (e.g. the filing of a divisional application under Article 76 EPC). Equally, users cannot rely on Rule 134(1) EPC to obtain an earlier date of receipt than the actual date on which a document is received, including as the case may be an earlier filing date.

16. Where a notification of loss of rights is dispatched despite an outage having occurred, in particular in cases where the EPO does not become aware of the outage until after the relevant date, users are advised to quote the reference number from the outage announcement on the dedicated section of epo.org when replying to the notification. It is not necessary for users to submit evidence.

17. If a user suspects that there has been an outage, but no corresponding announcement has been published on the EPO website, they should provide evidence that they were affected by the outage and were prevented from filing via the service concerned.

18. Users who are concerned about a loss of rights due to the failed submission of documents or payments via the EPO's filing tools or fee payment tools should consider requesting the available legal remedy as a precautionary measure. This is particularly relevant where there is uncertainty as to whether or not the failed submission is attributable to an EPO outage.

19. For European applications filed under Article 75(1)(b) or (2)(b) EPC, periods are extended mutatis mutandis with respect to any outage of the online filing tools of the contracting state (Rule 134(3) EPC). Users seeking to rely on this provision should provide evidence that they were affected by the outage and prevented by it from filing via that means.

A. Planned outages of means of electronic filing

i. Euro-direct and Euro-PCT applications

20. Where a means of electronic filing is unavailable for less than four hours on the same working day and an announcement of the outage has been published at least two working days in advance, Rule 134(1), second sentence, EPC does not apply. In such cases, users are expected to adapt their working schedule accordingly. If, however, the outage lasts for longer than four hours, Rule 134(1) second sentence, EPC applies. The announcement will be updated to reflect that all periods are extended for all users (see paragraph 14).

21. If a planned outage lasts for more than four hours stretching over two working days but for less than four hours on each of the two days, Rule 134(1), second sentence, EPC does not apply.

22. Even if an outage has been announced in advance, if it lasts for four hours or more on any working day, then Rule 134(1), second sentence, EPC applies.

ii. International phase

23. Since 1 July 2020, delays in meeting PCT time limits due to the unavailability of any of the permitted electronic means of communication may be excused by PCT Authorities under Rule 82quater.2 PCT. Where a PCT Authority is informed of a planned outage or becomes aware of an unplanned outage in its electronic means of communication, it will publish information about the unavailability, including its duration. If the outage is determined as falling under Rule 82quater.2 PCT, the Authority will notify the International Bureau of WIPO, which will publish information to that effect in the PCT Gazette.

24. Under Rule 82quater.2 PCT, users are not required to submit evidence. Reference to the unavailability of electronic filing as published by the International Bureau will suffice, and the non-observance of a time limit in a specific case will be excused without further assessment by the Authority. The relevant action must be performed on the next working day on which all permitted means of electronic filing are available. Users will be informed without delay of the EPO's decision via Form PCT/RO/132.

25. The EPO as PCT Authority applies Rule 82quater.2 PCT to excuse delays in meeting time limits. As laid down in this rule, the relevant information regarding the unavailability of an electronic means of communication, including its duration, will be published by the EPO and, based on information received from the EPO, by the International Bureau as well. At the EPO, the following electronic means of communication are accepted and may be affected by an outage: Online Filing (OLF), New Online Filing (CMS), ePCT and Web-Form Filing.

26. In addition to the electronic means of communication provided by the EPO, international applications may be filed via ePCT, a web-based electronic means of communication provided by the International Bureau. The International Bureau will notify the EPO of any outages affecting ePCT. The EPO will then determine whether Rule 82quater.2 PCT is applicable and will inform users, the public and the International Bureau (see paragraph 23 above).

27. Rule 82quater.2 PCT does not apply if a means of electronic filing is unavailable for less than four hours and an announcement of the outage is published at least two working days in advance. In such cases, users are aware of the unavailability and can adapt their working schedule accordingly by using the affected means of electronic filing before or after the unavailability. If the advance notice indicates that an outage will last for less than four hours, but in reality it ends up lasting for more than four hours, then Rule 82quater.2 PCT will apply. The relevant information will be published by the EPO on its dedicated webpage and by the International Bureau of WIPO (see paragraph 23 above).

28. Rule 82quater.2 PCT covers all the time limits fixed in the PCT Regulations for performing acts before offices. This includes the payment of fees, since the non-payment of fees within the applicable time limits may also result in a loss of rights. It does not, however, apply to the priority period, since the priority period is a time limit which is fixed in the Paris Convention. Users can nevertheless request restoration of the priority right under Rule 26bis.3 PCT.

29. Furthermore, Rule 82quater.2 PCT does not cover time limits fixed in the Treaty, e.g. the (standard) 30-month time limit for performing the acts for entry into the national/regional phase in accordance with Articles 22(1)(a) and 39(1)(a) PCT. However, for entry into the European phase, the EPO as designated Office has extended this standard time limit to 31 months (Rule 159(1) EPC, Articles 22(3) and 39(1)(b) PCT), to which time limit Rule 134(1) EPC applies. If the time limit is missed, any remedy, such as further processing (Article 121 EPC), may apply.

B. Unplanned outages of means of electronic filing

i. Euro-direct and Euro-PCT applications

30. Unplanned outages occur when a means of electronic filing is exceptionally and unexpectedly unavailable, for example because of a malfunction or the complete failure of the electricity system.

31. Users who are unable to file a document or who are in doubt as to whether a document has been properly transmitted should contact the EPO's Customer Services.4 If it is confirmed that the unavailability of the service is attributable to the EPO, they will not suffer any adverse consequences. Whether or not the means of electronic filing was unavailable is determined by the EPO's technical services, taking account of the specific circumstances of the case.

32. Users who are concerned about a possible loss of rights due to the failed submission of documents or failed payments via the EPO's filing tools should consider requesting the available legal remedy as a precautionary measure. This is particularly relevant where there is uncertainty as to whether or not the failed submission is attributable to an outage of an EPO system or merely to issues on the user's side.

33. In addition, users may request the EPO to declare under Rule 134(1), second sentence, EPC that the missed period is extended to the date on which the document was filed. Where a user requests the application of Rule 134(1), second sentence, EPC, they should provide evidence that the outage affected them and prevented them from filing via that means.

34. In the case of unplanned outages, the duration of the outage is irrelevant.

ii. International phase

35. Unplanned outages are generally due to malfunctions or other exceptional circumstances. In the case of unplanned outages as determined by its technical services, the EPO will publish information about the unavailability of the electronic filing service affected, including the duration of the outage, and notify the International Bureau, which will then publish information to that effect in the PCT Gazette.

36. An unplanned outage does not necessarily have to last for four hours or more to qualify for the application of Rule 82quater.2 PCT. If the unavailability of a means of electronic communication is qualified as an outage by its technical services, the EPO will determine whether the rule applies and will publish the necessary information as well as notify the International Bureau accordingly.

C. Outages of means of making payment

i. Euro-direct and Euro-PCT applications

37. If a payment period expires on a day on which one of the accepted means of making payment to the EPO for a Euro-direct or Euro-PCT application is unavailable, the payment period is extended to the first working day thereafter on which all such means of making payment are available.5

38. Consequently, if there is an outage relating to any of the accepted means of filing debit orders, such as CMS or OLF, or the Online Fee Payment tool or the EPO service for making payments via credit card and bank transfers, payment periods are extended to the first working day thereafter on which all accepted means of making payment are available. This applies even if the outage affects only one of the means of making payment.

39. However, because the Online Fee Payment tool and the EPO service for making payments via credit card and bank transfers both serve exclusively for making payments, outages affecting these two services cannot be invoked for periods relating to the filing of documents.6

40. Payment periods are not extended if a credit card transaction fails for a reason other than an outage of the EPO service for making payments by credit card (Article 4, Decision of the President of the EPO dated 22 August 2017 concerning the payment of fees by credit card, OJ EPO 2017, A72).

41. Users should also note that payment periods are not extended in the case of a planned outage of a means of making payment where the outage lasts for less than four hours and is announced at least two working days in advance (see paragraphs 20-22).

ii. International phase

42. As regards payments to be made to the EPO as PCT Authority during the international phase, the same procedure applies as in the Euro-direct procedure and the European phase, and with the same requirements, in the case of outages of means of making payment for international applications (see paragraphs 37 ff above).