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Thursday, 4 September 2008

An "OK" is ok with the EPO

The IPKat noticed on le blog du droits européen des brevets a mention of an interesting little decision from the EPO boards of appeal, T 580/06, which relates to whether fax transmissions can be relied on. The headnotes of the case read:

"Der "OK"-Vermerk auf dem Sendebericht eines Telefax ist als Beweis für die fehlerlose und vollständige Zustellung anzusehen, durch welche das Telefax in den Verantwortungsbereich des Empfängers gelangt ist (Nr. 1.5).

Ist das Telefax, wie durch den "OK"-Vermerk angezeigt, in den Verantwortungsbereich des Empfängers gelangt, so findet ein Risikoübergang statt, wobei der Empfänger die Risiken seiner eigenen Sphäre zu tragen hat (Nr. 1.4.2).
Roughly translated, when a fax is transmitted and an "OK" is noted by the sender, this is evidence that the transmission was successful. The responsibility for the fax then lies with the recipient.  In this case, the fax transmission related to payment of an appeal fee. A crucial fax from the EPO informing the representative that there were insufficient funds in their account (in accordance with Article 6.2 of the EPO arrangements for deposit accounts) was allegedly not received, with the effect that the appeal fee could not be paid in time.  

Since the EPO's view was that the fax transmission was successful, the representative could not claim that they did not actually receive the fax because, while the responsibility of sending the fax lay with the sender, once the "OK" was indicated the responsibility for receipt then lay with the receiver.  However, as the representative managed to show that this was an isolated occasion, re-establishment of rights (under Article 122 EPC) was allowed. 

The IPKat thinks that this reasoning makes sense (as far as he can work out from the French and German sources), because fax transmissions are generally quite reliable and are used so much in patent matters that not being able to rely on them would cause all sorts of headaches.  This case is, however, a reminder for those wishing to rely on notifications from the EPO to keep them from missing deadlines (never, in this Kat's opinion, a great idea) that they must make sure their machines and office practices are in good working order.  The IPKat also wonders whether the same reasoning would apply if the tables were turned and the EPO instead alleged that they did not receive a fax that a sender could prove had been sent. Is the EPO receiving system infallible, or could this feasibly occur? 


Anonymous said...

Actually you have hit upon an interesting exception here. Usually, the EPO does not communicate with parties by fax or Email (although parties may send documents to the EPO by fax, this does not normally go the other way around). These forms of communication as yet have no legal force for the EPO to send communications to parties (J27/97 and OJ EPO 2000, 458).

The only exception to this, which occurred in this case, is Point 6.4 ADA, which provides that the EPO can use EMail or fax to inform a party paying by debit order that he has insufficient funds in his account to cover the payment.

The party in question has one month from this communication to replenish his account. If does so within the month, the date of receipt of the original debit order constitutes the valid date of payment (which prevents any loss of rights). If the party does not replenish the account sufficiently within the one month, the payment is deemed not to have been made on time (which in this case renders the appeal deemed not received under Art. 108 EPC). The issue here was when was the fax received by the appellant (from which the one month period for replenishment is calculated). This was proven by the "OK" on the fax transmission.

Email and fax could in the future acquire legal force when used by the EPO for other proceedings before the EPO, by means of a decision of the EPO President according to Rule 2(1) EPC.

Anonymous said...

The Kat asks if the EPO Receiving System is infallible. from personal experience, this is not the case. Documents received by the EPO have been allocated to the wrong file and then can be effectively lost. Also, even the after-hours mail box is not infallible, it being emptied, according to my understanding, by security contractors who are not EPO employees. If things do go wrong, there is a remaining problem that decisions by the EPO can not be taken to an independent court for final resolution, as is, for example, the case in the US.

Chris Hemingway said...

I recall that there was an annoying bug in the shared fax receiving service built into an earlier version of Windows Server (which allows the computer to receive faxes).

On occasion, the fax would be received and the sender would get the OK confirmation but instead of printing the fax, the service would DELETE it! Thus, although it had technically been received it was never seen by the user. Ironically this used to occur most frequently with the UKIPO - the problem was apparently something to do with the particular fax machines involved on either side.

As I understand it the bug has never been fixed, even in the more recent versions of Windows...

It goes without saying that we don't use this particular service any more! However, I wonder where the responsibility for receipt failure lies in such cicumstances ...

Anonymous said...

The decision does however seem to give attorneys a way out - in item 1.4.3. - for those occasions where faxes are truly not received - one merely has to produce a copy of the "received faxes" printouts, and as pointed out the resposibility is on the attorney to ensure the fax machine is set up to produce this data.

Anonymous said...

Isn't the reasoning in this decision quite inconsistent?

First, the Board decides that the fax *did* arrive (point 1.5). A copy of the "received faxes" printouts might have saved the attorney on this point, but there is no such copy. So from this point on it is a legal fact that the fax entered the attorney's domain of responsibility (i.e. his office).

Now the question is whether the deadline was missed because of a one-time error in an otherwise properly working system. The attorney claims he did not receive the fax.

The Board correctly notes that it had already decided that the fax did enter the attorney's domain of responsibility. So the question is how the fax, after receipt at the attorney's office, could get lost within the office.

At the end of point 2.3.2 the Board mentions that the attorney was unable to show the "received faxes" printouts, which could have negated the "OK". IMO, this is completely irrelevant at this point, because it was already decided that the fax did arrive.

In point 2.3.3, the Board notes that according to the case law, it is the attorney who must explain the cause of the error in a way that allows the Board to judge whether it was a one-time error in an otherwise properly working system.

In point 2.3.4 the Board concludes from the assertion that this was the first error ever, that it was indeed a one-time error in an otherwise properly working system. I don't follow this. Sure, it was a one-time error, but was it an otherwise properly working system or was it an error waiting to happen? Did the error happen in spite of all due care? I don't see how this question can already be answered in favour of the attorney.

The Board does remark that the cause of the error is still in the dark, but somehow it doesn't seem to care anymore. I don't quite understand that. I do agree that not setting up the fax properly is not a sign that not all due care was taken in handling the fax after receipt, but the question is still how a fax that was received could get lost. Somehow the Board seems to wander back to the idea that the fax possibly did not arrive.

Maybe I'm wrong, I don't know the case law very well, but as I see it the sole relevant point the attorney made is that this was the first time a deadline was missed. Can that be sufficient?

@Chris: in the case of the shared fax receiving function, I would say the fax did enter the attorney's domain of responsibility (cf. point 1.5). That the system used is not properly working then seems to negate all possibility of a successful re-establishment of rights. However, saying you don't really have a clue as in T 580/06 might still save you ;)

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