Friday, 23 October 2009

T 972/05 - Unlike Stalin, the EPO Can’t Correct Facts

The contested decision was signed by the opposition division (OD) on 1 March 2005 and was posted on 18 May 2005. However, the decision was sent without being accompanied by the Minutes of taking of evidence. Said Minutes were dispatched with a subsequent letter of the OD dated 24 June 2005, under the cover letter of the first sheet of the interlocutory decision (EPO Form 2327). In a further brief communication to the parties dated 2 August 2005, the OD stated: “The interlocutory decision is dated 24.6.2005.” [1.1]

However, the OD had no power to re-date its decision under R 89 EPC 1973 (R 140 EPC) (see T 124/93 [1.1]). Nor could the OD change the mailing date of the decision once it was correctly notified to the parties, in order to re-start the time limit for filing an appeal according to A 108, first sentence, EPC. The mailing date is a fact which cannot be corrected for example under R 89 EPC 1973. The circumstance that the Minutes of taking of evidence were missing is not of relevance, as both parties were in possession of the decision itself which alone forms the basis for the appeal. [1.2]

According to A 108 EPC, the time limit for filing an appeal is two months after notification of the decision on 18 May 2005. Allowing 10 days for post services, the non-extendable time limit for filing the appeal expired on 28 July 2005. [1.3]

It results from the above considerations that the notice of appeal of appellant I, filed on 25 July 2005, was filed in good time; whereas its statement of grounds of appeal was filed late on 2 November 2005. However, the board accepts that appellant I was misled by the letter of the OD which stated a later date for the decision. Applying the principle of protection of legitimate expectations according to which communications of the EPO can be relied upon, the appeal of appellant I is thus considered admissible (see T 124/93 [1.1]). [1.4]

The opponent’s notice of appeal was filed on 29 August 2005 and the grounds for appeal were filed on 24 October 2005, both dates being after the expiry of the time limit for the appeal on 28 July 2005, triggered by the notification of the decision posted 18 May 2005. Hence both letters were filed too late. Appellant II cannot, in the board’s view, rely on having been confused by the OD’s letter dated 2 August 2005, as this letter was received by them only after expiry of the said time limit for filing the appeal. The appeal of the opponent is therefore not admissible (A 108 EPC). The opponent is thus party to this appeal proceedings as of right, pursuant to A 107 EPC, second sentence, and will in the following be referred to as the respondent. [1.5]

To read the whole decision, click here.