Monday, 28 December 2009

T 1427/09 – Using The Wrong Card

The present interlocutory decision deals with an appeal filed electronically. The notice of appeal and the statement setting out the grounds of appeal carried the name of Mr. Friedrich Kühn, who is a European patent attorney, but the electronic filing was done using certificates belonging to I. Elfving and R. Ahlund [who both appear not to be European patent attorneys], respectively.

[…] In the present case, the appeal documents were electronically filed using the technical means of communication addressed in R 2(1) and defined in Article 5(1) of the “Decision of the President of the EPO dated 26 February 2009 concerning the electronic filing of documents” (“2009 Decision”). The dates of transmission and receipt (11 May 2009 for the notice of appeal and 17 June 2009 for the statement setting out the grounds of appeal) were verified by the acknowledgements of receipt issued by the EPO. [5]

As the electronic signatures used for the electronic filing of the appeal documents were not issued to a person authorised to act in the present proceedings (as required by Article 8(2) of the 2009 Decision) but to other individuals, the applicable requirements concerning the authentication of the documents were not met. The 2009 Decision is silent on the legal consequences of any non-compliance with its Article 8(2). [6]

R 2, on which the 2009 Decision is based, authorises the President of the EPO to specify technical means of communication for the filing of documents (R 2(1)) and to permit appropriate means for document authentication where the EPC provides that a document must be signed (R 2(2)). R 2(1) provides for legal consequences in cases where documents are filed through non-approved technical means of communication (T 765/08 [9]). On the other hand, R 2(2) does not specify the legal consequences for any non-compliance with requirements concerning signatures and other means of document authentication. [7]

For documents filed after the filing of the application without the required signature, R 50(3) provides that the EPO shall invite the party concerned to sign the document within a time limit to be specified.

It is appropriate and not in conflict with R 2 to apply R 50(3) to documents filed electronically in appeal proceedings without the electronic signature required under Article 8(2) of the 2009 Decision. In the board’s judgment, the principle that the signature of an unauthorised person shall be treated like a missing signature (T 665/89 [1.4]) should apply not only to handwritten signatures but also to electronic signatures. Consequently, the electronic filing of a document in appeal proceedings accompanied by the electronic signature of an unauthorised person should be treated under R 50(3) like the filing of an unsigned document per mail or telefax in the same proceedings. [8]

Since signed copies of the notice of appeal and the statement setting out the grounds of appeal were filed within the time limit set in the communication of 8 September 2009, said documents retain their original date of receipt (R 50(3), third sentence). [9] 

NB: This decision has also been reported by Pete Pollard.

To read the whole decision, click here