T 1633/18 - Webform filing apeal

Key points

• In this examination appeal, the Notice of appeal was filed with webform filing, which is expressly not allowed; the documents are deemed not received (EPO 2018, A45). Nevertheless, the EPO accepted the documents (the documents were added to the file, the debit order for the appeal fee was carried out; the EPO did not notify the appellant). 
• " Since both letters were received well before the expiry of the respective time limits (for filing the appeal and for filing a statement of grounds of appeal), by not observing its duty to inform the appellant without delay, the EPO deprived it of the opportunity to resubmit its letters by correct means of filing documents." 
• Therefore, under the principle of protection of legitimate expectations, the documents are deemed to be filed (the appellant had also resubmitted the documents on paper when invited to do so by the Board).
• The appeal is nevertheless inadmissible, because the Statement of grounds was only an indication that arguments will be filed ("In the submission to be made by 29 May 2018, the Applicant will submit substantive arguments why the Examiners of the Examination Division are over-severe in their assessment" ).
• As a comment, the appellant was represented by a professional representative working at a (small, UK) patent attorney firm.
• As a further comment, it is rather surprising that the EPO carried out* a debit order filed on 28.03.2018 with webform filing. Since 01.12.2017, webform filing is not an accepted means of filing a debit order (just like PDF documents). Compare T 590/18 . (* = there is a refund of the appeal fee because the fee was paid twice by the same payer on the same date referring to two different vouchers. There are no vouchers visible in the online file but I think online fee payment (a form of debit order) does not show up in the online file; perhaps credit card payment also is processed as "voucher" by the EPO. In any case, the Notice of appeal states  "the Applicant herewith authorizes deduction of an associated appeal fee"; strictly speaking the appellant may have additionally paid the appeal fee twice with online fee payment but more likely that debit order in the letter was processed). 
• As a final comment, I am not aware of any logic why webform is excluded for appeals (and also from opposition, limitation and revocation proceedings). Webform filing is intended to replace fax, and faxes are perfectly fine in appeal. I am also not aware of the EPO having indicated a reason for the exception. Of course, no smartcard is required for webform filing. However, already since 16.11.2015 the requirement of an 'enhanced electronic signature' for appeal documents is abolished. Faxes are also acceptable and don't use the smartcard at all. Facsimile signatures are fine for fax but apparently not if they are filed as a PDF document using Webform Filing (note that furthermore fax shows the sender's fax number whereas Webform filing is set up to always have a sender's email address). If the reason is to exclude the filing of important documents, why is a withdrawal of an application not excluded from WWF?

EPO T 1633/18 - link

Reasons for the Decision

1. Filing of documents in respect of appeal proceedings using the EPO Web-Form Filing service

1.1 The contested decision was dispatched on 29 January 2018. The applicant submitted both the notice of appeal dated 28 March 2018 and the further letter dated 14 May 2018 by using the EPO Web-Form Filing service.

1.2 However, this service may not be used for filing documents in respect of appeal proceedings (see Article 2(1) and (2) of the Decision of the President of the EPO dated 10 September 2014 concerning the filing of documents using the EPO Web-Form Filing service, OJ EPO 2014, A98; Rule 2 EPC). The Board notes that this decision has been superseded by the Decision of the President of the EPO dated 9 May 2018 concerning the electronic filing of documents, which entered into force on 1 June 2018 but leaves the provisions concerning the use of the EPO Web-Form Filing service essentially unchanged (see Article 3 of the Decision dated 9 May 2018, OJ EPO 2018, A45). If documents in respect of appeal proceedings are nonetheless filed using the EPO Web-Form Filing service, they are deemed not to have been received.

1.3 Pursuant to Article 2(2), second sentence, of the above cited Decision dated 10 September 2014, in such a situation the sender, if identifiable, should be notified without delay. In the present case, it is apparent from the file that the EPO did not notify the applicant in conformity with this provision. Hence, the appellant was not informed that its notice of appeal and its further letter dated 14 May 2018 were not deemed to have been received. Rather, the EPO acknowledged the receipt of both letters using an automatically generated form, added both letters to the official file and deducted the appeal fee from the account indicated. As is evident from EPO Form 2701, the department of first instance considered the appeal to be validly filed.

1.4 Since both letters were received well before the expiry of the respective time limits (for filing the appeal and for filing a statement of grounds of appeal), by not observing its duty to inform the appellant without delay, the EPO deprived it of the opportunity to resubmit its letters by correct means of filing documents.

1.5 As the appellant resubmitted its letters in a correct manner in reply to the Board's communication pursuant to Rule 100(2) EPC and as the EPO failed to notify the appellant of its incorrect use of the Web-Form Filing service, the appellant has to be treated, according to the principle of protection of legitimate expectations, as if it had submitted these letters in a correct manner before the expiry of the time limits for filing the notice of appeal and the statement of grounds of appeal, respectively. Consequently, the Board considers that the letters dated 28 March and 14 May 2018 are validly filed.

2. Admissibility of the appeal

2.1 According to Rule 99(2) EPC, the statement of grounds of appeal is to indicate the reasons for setting aside the decision impugned. If this requirement is not complied with before expiry of the time limit for filing the statement of grounds of appeal, the appeal is to be rejected as inadmissible (Rule 101(1) EPC). For the statement of grounds of appeal to comply with Rule 99(2) EPC, it has to address in sufficient detail each of the grounds for the decision (see decisions T 1628/18 of 26 November 2018, reasons 1; T 305/11 of 26 April 2016, reasons 1.1, and the decisions cited there). As a rule, a ground for refusal can be addressed by arguing why the objection raised was incorrect or by amending the application and explaining why the objection is no longer relevant.

2.2 In the present case, the contested decision raised objections under Articles 84 and 123(2) EPC for various claims. In its letter dated 14 May 2018, the appellant neither submitted any amendments to the claims on file nor provided any basis for the amendments made in the first-instance proceedings to which the objections under Article 123(2) EPC referred. Moreover, this letter does not contain any substantive argument why the clarity objections raised in the contested decision were incorrect. As this letter was clearly not intended as a complete statement of grounds of appeal, this lack of substantiation is hardly surprising (see the following passages of the letter: "The Applicant is presently preparing substantive arguments that the Applicant aims to submit by the deadline of 29 May 2018"; "This letter from the Applicant is merely a notification that the Applicant is presently preparing detailed substantive arguments to be submitted by 29 May 2018"; "By the deadline of 29 May 2018, the Applicant will provide a detailed basis of support for all the amendments made in the Main Request claim set ... to address the Examiner's concerns regarding added subject-matter"; "In the submission to be made by 29 May 2018, the Applicant will submit substantive arguments why the Examiners of the Examination Division are over-severe in their assessment, and the Applicant will submit an amended claim set that addresses all the objections regarding clarity raised by the Examiners.").

3. The Board does not need to decide whether the appellant's letter dated 14 May 2018 qualifies as an (albeit insufficiently substantiated) statement of grounds of appeal within the meaning of Article 108 EPC or whether it merely constitutes a further letter announcing the appellant's intention to submit a statement of grounds of appeal at a later stage.

4. In view of the above, the appellant did not submit a statement of grounds of appeal addressing in sufficient detail each of the grounds for refusal. The appeal does not comply with Rule 99(2) EPC and is therefore to be rejected as inadmissible (Rule 101(1) EPC).

Order

For these reasons it is decided that:

The appeal is rejected as inadmissible.