Thursday, February 15, 2018 R 4/17 - Four is a party

In the present case, the Opponent appealed the decision of the Opposition Division to maintain the patent as granted. The Board of Appeal sent three registered - but without advice of delivery - communications (notice of appeal; statement of the grounds of appeal; further letter) to the Respondent-Proprietor. In the absence of any response from the Proprietor to these letters, the Board of Appeal considered itself to be in a position to issue a decision revoking the patent without the need to hold oral proceedings. This decision of the Board was sent to the parties under cover of a registered letter with advice of delivery. 

The Proprietor filed a petition for review of the decision, arguing that it had no record of ever having received the first three letters, thus depriving him of his right to be heard.

The Enlarged Board now deals with this petition for review, and finds that in the present case, the Proprietor had, within the meaning of Article 113(1) EPC, no opportunity at all to comment on the grounds for the decision under review. This qualifies as a fundamental violation of his right to be heard.


Catchwords:
In the event of any dispute about whether a letter from the EPO reached the addressee or on which date, it is incumbent on the EPO to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee (Reasons, point 2).

[...] parties must be able to rely on the EPO complying with the relevant provisions of the EPC and, at least for the purposes of Article 113(1) EPC, they and their representatives have no duty to monitor the proceedings themselves by regularly inspecting the electronic file (Reasons, point 4).

In respect of the implausibility of the non-arrival of letters put forward by the Other Party the Enlarged Board considers that it cannot be expected that the Petitioner should prove a negative, that is the nonreceipt of a letter, or provide a plausible explanation for non-receipt (Reasons, point 4). 



Reasons for the decision

Formal requirements for admissibility

1. The Petition fulfils the formal requirements for admissibility (time limits, form, Rules 106, 107 EPC, and payment of fees). Hence, the petition is admissible.

Allowability of the petition

2. Rule 126(2) EPC provides that in the event of any dispute about whether a letter from the EPO reached the addressee or on which date, it is incumbent on the EPO to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be. In the present case the Office was not able to establish by internal investigations that the critical communications reached their destination, as required by the applicable cited Rule.

3. In the absence of any relevant evidence from outside the EPO, the Opponent-Appellant’s notice of appeal, statement setting out the grounds of appeal and its letter must be considered not to have been communicated to the Petitioner. Such communication is required by Rule 100(1) in conjunction with Rule 79(1) EPC.

4. Although the notice of appeal, statement setting out the grounds of appeal and letter were available to the public by way of electronic file inspection, parties must be able to rely on the EPO complying with the relevant provisions of the EPC and, at least for the purposes of Article 113(1) EPC, they and their representatives have no duty to monitor the proceedings themselves by regularly inspecting the electronic file. There is also no evidence that the Petitioner learnt of these documents by other means.

In respect of the implausibility of the non-arrival of letters put forward by the Other Party the Enlarged Board considers that it cannot be expected that the Petitioner should prove a negative, that is the non-receipt of a letter, or provide a plausible explanation for non-receipt (negativa non sunt probanda). The Other Party also suggested that an internal reorganisation of the Petitioner could have been the cause of the non-receipt of the documents. The Enlarged Board notes that the decision under review was sent to “Rhodia Chimie, Direction de la Propriété Industrielle”, that is to the same addressee, and at the same address, as all the communications issued by the Board of Appeal between 25 October 2011 and 12 April 2017. The EPO’s file shows that between 25 October 2011 and 11 April 2012, and on 18 April 2017 the Petitioner received the EPO's communications. It is only in the period 11 June 2012 to 23 August 2012 that mail was apparently not received by the Petitioner. Thus the same entity at the same address has received communications both before and after the period of apparent non-receipt. The Petitioner has not submitted any comment on this argument. From the evidence before the Enlarged Board it does not appear that during the relevant time a reorganisation of the Petitioner took place. However, this argument is of no bearing as long as the EPO is not in a position to establish that the letters reached their destination. The issue would have been different if, as a matter of evidence, the letters were known to have reached their destination in the sense of Rule 126(2) EPC, but were not processed by the addressee due to an internal reorganisation, i.e. under circumstances within the control of the addressee.

5. It follows that in the appeal proceedings under consideration the Petitioner had, within the meaning of Article 113(1) EPC, no opportunity at all to comment on the grounds for the decision under review. This qualifies as a fundamental violation of Article 113(1) EPC pursuant to Article 112a(2)(c) EPC, so that the petition and the request for reimbursement of the fee for the petition (Rule 110 EPC) have to be allowed (see R 7/09, points 4 to 6 of the Reasons).

Order

For these reasons it is decided that:

1. The decision under review is set aside and the proceedings before Board of Appeal 3.3.03 are re-opened.

2. Reimbursement of the petition for review fee is ordered.

This decision R 0004/17 (pdf) has European Case Law Identifier: 
ECLI:EP:BA:2018:R000417.20180129. The file wrapper can be found here. Image "Mail Box" courtesy of digitalart at FreeDigitalPhotos.net (no changes made).