J 28/10 – The Doorman

In this case the applicant did not reply in due time to a communication pursuant to A 94(3).

A notification of loss of rights was issued on December 21, 2009.

This triggered a time limit for further processing:

21/12/09 + 10d (R 126(2)) = 31/12/09 + 2m (R 135(1); R 131(4)) = 28/2/10 (Sunday) →  1/3/10 (R 134(1))

The representative filed a request for further processing on March 3, 2010; the corresponding fee was paid and the response to the communication filed.

On March 22, the EPO informed the applicant that the request had not been filed in due time because the time limit had expired on March 1, 2010. As there was no response, the EPO issued a decision that the request for further processing was deemed not to have been filed, that the application was deemed to be withdrawn with effect from November 24, 2009, and that all fees paid after November 23, 2009 would be refunded once the decision became final.

The applicant filed an appeal and submitted that the communication of March 22 was never received by the office of the appellant’s representative who thus has never had the opportunity to reply to the communication.

The appellant’s representative gave further details as to the process in practice at his office concerning incoming mail as follows:

• The representative’s office was located in a large building in a business-park. Incoming mail for the law firm was not delivered to the office door of the law firm but left at the doorman’s desk located at the entrance of the building. For the case of certified letters, the postman provided a list of them to the doorman and, “depending on the practice of the day”, either the doorman signed said list confirming the reception, or a secretary of the firm fetched the mail from the doorman. In any case the representative’s office never got a copy of the list for cross-checking purposes.

• It could happen that the above process lead to letters being distributed to the wrong recipients. It could therefore not be excluded that a certified letter addressed to the representative’s law firm was received at the doorman’s desk, signed by him and then passed to the wrong recipient.

The Board dismissed the appeal:

[2] The issue raised by the appeal is that of the proof of reception of a communication from the EPO by an addressee with regard to the requirements specified in R 126 (2).

[3] In the present case the communication of the Formalities Officer acting on behalf of the Examining Division (ED) informing the appellant’s representative that the request for further processing has not been filed in due time bears the date of 22 March 2010. This communication was sent by registered letter. According to R 126(2) this communication is deemed to have been delivered to the addressee on the tenth day following its posting, unless the letter failed to reach the addressee or reached him at a later date. In the event of any dispute, it is incumbent on the EPO to establish that the letter reached its destination. In any case, the probative value of the evidence provided by the EPO should, if necessary, be balanced against the probative value of submissions and evidence by the appellant (applicant).

[3.1] As submitted by the appellant’s representative, a specific system for the reception of registered letters was implemented and accepted by the representative. This system involved the delivery of registered letters to the desk of the doorman of the business-park building in which the representative has his office.

The doorman is the employee of a security company, this company having a contractual relation with the company that administrates the business-park where the representative rents office space.

These letters are subsequently distributed either by the doorman or fetched by a secretary from the representative’s office.

[3.2] It results from the postal investigation carried out by the EPO before issuing the appealed decision that the communication of 22 March 2010 was delivered on 23 March 2010 and that the confirmation of receipt was signed by an identified recipient, i.e. Mr. Bodo T.

The same recipient is again mentioned on the advice of delivery of 8 July 2010 which concerns the notification of the appealed decision.

This leads to the conclusion that a letter which is delivered to Mr. T. should be deemed delivered by the postman to an authorized recipient, acting within the mail reception process implemented at the representative’s office and accepted by him.

[4] The processing of outgoing and incoming postal or electronic mail is a key point in the organization of a law office. It is a vital component of any office system that has to deal with time-limits that have legal consequences.

[4.1] It is an established fact that the appellant’s representative was fully aware of and accepted the system for the reception and distribution of postal mail in place at the business-park in which it rented office space.

The questions for consideration are, first, whether the above described system for the reception of postal mail is to be considered as a system falling under the organisational arrangements put in place, accepted and authorised by the representative, and second, whether this system enables the representative to know if mail has been received (see T 1535/10 [1.5.2]).

[4.2] It is not contested by the appellant’s representative that a third party, i.e. an employee of a security company hired by the park administration receives and accepts registered letters from the post administration on behalf of the representative’s law office, even without any explicit authorisation to that effect. By the course of conduct of renting office space subject to this system of postal receipt, the representative has implicitly consented to such an arrangement.

Furthermore, it was confirmed that no special procedures are in place with regard to the forwarding of these letters to an employee of the representative or to the representative himself. Apart from mere considerations of the distance of the representative’s office from the doorman’s desk, there was no specific hindrance preventing the representative or any of its employees from having knowledge of incoming postal mail.

It therefore has to be concluded that the representative was fully aware of the details and functioning of this system of reception and distribution of postal mail, including any risk associated with this system. By using a service external to his office for receiving and dispatching postal mail as explained above, the representative accepted that this external service would be treated as if it were his own in matters relating to the delivery of communications subject to deadlines.

[5] In the Board’s opinion the situation of the present case is different to the one dealt with in decisions J 9/05 and J 18/05. In these cases the only evidence provided by the ED was a letter from the Deutsche Post referring to the information received from the foreign postal service, according to which the letter was delivered to an authorised recipient, who, however, was not specified. Thus, there was no evidence that the registered letter was delivered to an authorized recipient and it was even not possible to determine to which recipient the letter was notified since the information retrieved from the postal services lacked detail and was extremely vague.

[6] It follows from the above that the communication of 22 March 2010 shall be deemed as delivered to the addressee on the tenth day following its posting (R 126(2)) without any response being given by the appellant’s representative in due time.

Hence, the Board judges that there is no reason to deviate from the decision under appeal. […]

The appeal is dismissed.

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