T 0382/16 - Last page missing

Key points

• In this opposition appeal, "the patent proprietor (respondent) submitted with their rejoinder (letter of 23 August 2016) comparative tests dated 15 [May] 2014 which will be referred to as D11." 
• The appellant objects that the letter of 23.08.2016 had not been signed.
•  "The respondent replied with a letter of 12 March 2019 indicating that the last page of the rejoinder of 23 August 2016 (page 5) bearing the signature of the representative had not been transmitted. Accordingly, the whole rejoinder including the missing page 5 with a signature of the representative was submitted with said letter of 12 March 2019." 
• The Board: " in analogy to the provisions of Rule 50(3) EPC, it was considered that the submissions made by the respondent with letter of 23 August 2016, i.e. pages 1 to 4 and experimental report D11, shall retain their original date of receipt. "
• Note that Rule 50(3) EPC supposes that the EPO " shall invite the party concerned to do so within a time limit to be specified." This decision clarifies that the signature can also be provided prior to such an invitation.

EPO T 0382/16 -  link


Summary of Facts and Submissions

VI. The patent proprietor (respondent) submitted with their rejoinder (letter of 23 August 2016) comparative tests dated 15 [May] 2014 which will be referred to as D11.

VII. The appellant submitted with a letter of 5 March 2019 that the rejoinder of the respondent had not been signed by a person authorized to represent the respondent. It was argued that a remedy to this deficiency would presuppose the existence of a communication under Rule 50(3) EPC which had not been issued.

VIII. The respondent replied with a letter of 12 March 2019 indicating that the last page of the rejoinder of 23 August 2016 (page 5) bearing the signature of the representative had not been transmitted. Accordingly, the whole rejoinder including the missing page 5 with a signature of the representative was submitted with said letter of 12 March 2019.

IX. In the communication of the Board of 8 April 2019 sent in preparation for the oral proceedings, the Board indicated that having regard to respondent's letter of 12 March 2019 and in analogy to the provisions of Rule 50(3) EPC, it was considered that the submissions made by the respondent with letter of 23 August 2016, i.e. pages 1 to 4 and experimental report D11, shall retain their original date of receipt.

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Reasons for the Decision

1. The indication by the Board in its communication of 8 April 2019 that the submissions made by the respondent with letter of 23 August 2016, i.e. pages 1 to 4 and experimental report D11, shall retain their original date of receipt (see above point IX of the Summary of Facts and Submissions) was not disputed by the appellant. The submissions made by the respondent with letter of 23 August 2016 are therefore deemed to have been made within four months of notification of the grounds of appeal and are to be taken into account in the appeal proceedings (Rule 12(1)(b) and (4) RPBA).