J 0004/87 (Delay in post) 02-06-1987

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.

Date of filing

2. Article 75(1) EPC sets out where a European patent application may be filed: either directly at the EPO, in Munich or The Hague, or (if the law of a Contracting State permits) at a competent authority of that State. In the present case, the Appellant chose to file the European patent application at the EPO in Munich.

3. Rule 24(1) EPC provides that "the European patent applications may be filed either directly or by post". In the present case the Appellant chose to file the European patent application by post from the UK to the EPO in Munich.

Rule 24(2) EPC provides that the authority where an application is filed shall mark the relevant documents with the date of their receipt. The effect of Rule 24 EPC was considered in Decision J 18/86 dated 27 April 1987 of the Legal Board of Appeal "Filing Date/Zoueki", and it is there stated that "Rule 24 EPC provides, on its proper interpretation, a comprehensive and self-sufficient system in accordance with which the EPO can determine the date of filing of a European patent application, wherever it is filed". It is further stated that "There is nothing in the EPC which enables the EPO to accord a date of filing for such an application, other than the date of receipt of such documents at the competent authority, ...". Decision J 18/86 was dealing with an application which had been filed at the UK Patent Office as a competent authority under Article 75(1)(b) EPC, but the above statement applies equally to an application filed directly at the EPO at Munich. Article 80 EPC provides that "The date of filing of a European patent application shall be the date on which (certain listed) documents are filed by the applicant....". In the present case documents in accordance with Article 80 EPC were filed on 11 December 1985, and consequently the filing date is 11 December 1985. The EPC does not permit of any other date to be accorded to this application.

The submission in paragraph VI(2) above does not assist the Appellant. In fact, as stated above, the Appellant chose to send the application to Munich rather than to the UK Patent Office (for the reason which he explains). But even if the European application had been sent to the UK Patent Office (by first-class post), in accordance with the Decision in Case J 18/86 the filing date would have been the actual date of receipt at the UK Patent Office, not the 5 December 1985 by reason of UK Patents Rule 97, as submitted by the Appellant.

In view of the provisions of the EPC discussed above, if an applicant wishes his application to be accorded a particular date of filing, he must ensure that application documents in accordance with Article 80 EPC are actually received at the EPO itself or at a competent national authority by that date.

Claim to priority

4. As to the claiming of priority, Article 87(1) EPC provides, for the purpose of filing a European patent application, a right of priority during a period of twelve months from the date of filing of the first application for the same invention. In the present case a UK application for the same invention had been filed on 8 December 1984. In accordance with Rule 83(4) EPC, the twelve month period expired on 8 December 1985, but as that day was a Sunday, in accordance with Rule 85(1) EPC, the time limit for claiming priority was extended so as to expire on 9 December 1985.

Rule 85(2) EPC provides for extension of a time limit if it "expires on a day on which there is a general interruption or subsequent dislocation in the delivery of mail in a Contracting State or between a Contracting State and the EPO"; in such a case the time limit is extended to the day following the end of the period of interruption or dislocation. In the present case there was a period of interruption in the delivery of mail in the united Kingdom between 15 November and 5 December 1985, as stated in the Notice of the President of the EPO dated 21 January 1986. In accordance with Rule 85(2) and (3), any time limit expiring during that period was extended to 6 December 1985, for parties as defined in the Notice. But, as explained above, the twelve month time limit which applied in the present case expired on 9 December 1985 in accordance with Rule 83(4) EPC, which is outside the period of interruption of mail specified in the President's Notice. In the Board's judgement, there is nothing in Rule 85 EPC which provides the EPO with the power to extend further the twelve month time limit for claiming priority which applied in the present case.

5. The Appellant has submitted (cf. para. VI(4) above) that there is nothing in the EPC which prevents the EPO from exercising discretion in cases of exceptional delay in the post. However, as a matter of law the EPO has no general discretion such as suggested by the Appellant. The EPO can only exercise discretion if the power to do so can be derived from the EPC. The only provision in the EPC which enables a time limit to be extended because of delays in the mail is Rule 85(2) EPC, and, as explained in paragraph 4 above this Rule cannot be applied in the present case. There is nothing else in the EPC which provides the EPO with the power to extend the time limit for claiming priority in the event of an unforeseeable postal delay, such as occurred here. In the absence of such power, the Decision of the Receiving Section rightly held that no extension of the twelve month period provided by Article 87(1) EPC was possible.

Thus the Board is unable to allow this appeal.