T 2307/15 - Incomplete faxed Statement of grounds

Key points

• A Statement of grounds is sent by fax. The fax is incomplete, various paragraphs of the Statement are missing (however, the signature is included). This does not make the appeal inadmissible.
• "The Board finds that although some paragraphs are missing in the statement setting out the grounds of appeal filed by the appellant on 15 February 2016 when compared with the version filed on 16 February 2016, the document received by the EPO on 15 February 2016 still allows the reader to understand the reasons according to which the appellant requests the impugned decision to be set aside and the facts and evidence on which the appeal is based."
• "Since the reasons for setting aside the decision impugned and the facts and evidence on which the appeal is based are evident to the Board as well as to the respondent from the statement setting out the grounds of appeal filed by fax on 15 February 2016, the latter is considered to properly define the appellant's case in accordance with Rule 99(2) EPC and Article 12(2) RPBA." 
• The Board adds that: "the recent dissenting decision T 858/18 of Technical Board of Appeal 3.5.02 of 20 May 2019 [...] concerning the issue of admissibility of an opposition remains an isolated decision in an individual case based on a factual basis different from the current case, which is marked by the specific purpose of the requirements of an admissible appeal explicitly provided for in Article 12(2) RPBA and in Rule 99(2) EPC."

EPO  T 2307/15 -  link

2. Admissibility of the appeal

2.1 The respondent argues that, pursuant to Article 108, second sentence, EPC in combination with Rule 131(1) and (4) EPC, the delay for filing the statement setting out the grounds of appeal expired on 15 February 2016. The statement received by facsimile on that day was incomplete and therefore the document shall be deemed as not have been received by the EPO. That the appellant re-sent a complete statement of the grounds of appeal on 16 February 2016 was not to be taken into account because this occurred only after the due date.

The respondent further argues in reply to the Board's communication pursuant to Article 15(1) RPBA that the first issue to be addressed is not whether the incomplete statement of grounds of appeal complies with the requirements of Rule 99(2) EPC but rather whether the incomplete statement of grounds of appeal should be considered as properly received at the EPO. Article 6 of the decision of the President of the EPO dated 12 July 2007 (special edition No. 3 OJ EPO, A.3) should be taken into account together with Rule 2(1) EPC and accordingly the fax sent on 15 February 2016 shall be deemed not to have been received at the EPO.

Hence, the appeal should be rejected as inadmissible according to Rule 101(1) EPC.

2.2 The appellant reacted neither to this objection of the respondent nor to the Board's communication pursuant to Article 15(1) RPBA.

2.3 The Board finds that although some paragraphs are missing in the statement setting out the grounds of appeal filed by the appellant on 15 February 2016 when compared with the version filed on 16 February 2016, the document received by the EPO on 15 February 2016 still allows the reader to understand the reasons according to which the appellant requests the impugned decision to be set aside and the facts and evidence on which the appeal is based.

The contrary is neither shown nor argued in the respondent's reply to the grounds of appeal or in its reply to the Board's communication pursuant to Article 15(1) RPBA.

Rather, it appears from the respondent's reply letter to the statement setting out the grounds of appeal and the arguments submitted therein that the respondent was well aware of what the appellant argued in support of its request that the decision under appeal be set aside and that the patent be revoked for non-compliance with Articles 100(b), 100(c), 83 and 123(2) EPC and for lack of inventive step (Article 100(a) and 56 EPC).

Since the reasons for setting aside the decision impugned and the facts and evidence on which the appeal is based are evident to the Board as well as to the respondent from the statement setting out the grounds of appeal filed by fax on 15 February 2016, the latter is considered to properly define the appellant's case in accordance with Rule 99(2) EPC and Article 12(2) RPBA.

The statement setting out the grounds of appeal received by fax on 15 February 2016 is therefore to be seen as being complete, also in the sense of Article 6 of the President's decision referred to by the respondent, since it fulfills the purpose which it is meant to achieve.

In this view, the Board follows and confirms its own approach taking in decision T 2061/12 of 19 October 2016 (in a different composition), point 1 of the Reasons, as well as interlocutory decision taken by Technical Board of Appeal 3.3.04 in case T 2317/13 of 14 April 2014 (neither of them published in the OJ EPO). The recent dissenting decision T 858/18 of Technical Board of Appeal 3.5.02 of 20 May 2019 (not published in the OJ EPO) concerning the issue of admissibility of an opposition remains an isolated decision in an individual case based on a factual basis different from the current case, which is marked by the specific purpose of the requirements of an admissible appeal explicitly provided for in Article 12(2) RPBA and in Rule 99(2) EPC.

Thus, the appeal is admissible because it complies with the requirements of Article 108 EPC in combination with Article 12(2) RPBA and Rule 99(2) EPC .