Key points
- The opponent tried paying the opposition fee on the last day using a debit order. Online filing (OLF) did not work well. The opponent then filed the notice of opposition by fax, which included a request to debit the opposition fee from the deposit account. The EPO did not carry out this request. One day later, the opponent paid the opposition fee using online payment.
- The Board concludes that the remedy of point 5.5 of the ADA applies.
- As a minor quibble, the EPO does not publish the ADA at a fixed address like they do for the Rfees. The ADA can only be found in the OJ and OJ supplements.
- The remedy is currently in point 11 ADA and reads as follows: "If a payment period expires on a day on which one of the accepted means of filing debit orders under point 7.1.2 is not available at the EPO, the payment period is extended to the first day thereafter on which all such means as are available for the type of application concerned can be accessed again." (link)
- The decision deals with the question of whether the error in OLF was "at the EPO".
- "The software version 5.0.11.172, used by the opponent for the online filing, was outdated and no longer recommended on 22 May 2019. The EPO had indicated, in [a message on the EPO website], that there were problems with this version. These problems were fixed in the recommended, updated version 5.0.11.174, published by the EPO in [a message on the EPO website], approximately one month before the attempted online filing. The use of outdated and faulty software was a failure of the opponent, which was not attributable to the EPO."
- The Board concludes that the use of OLF version 5.0.11.172 was "officially approved" by the EPO at the relevant time and that software errors in a permitted OLF version are issues "at the EPO" within the meaning of the ADA. Therefore, the remedy applies. Moreover, the opponent had provided sufficient proof of the software errors and their attempts to file the debit order using OLF. "Mr F then repeatedly tried to re-sign and re-send the notice, each time with the same result."
- One could ask why the opponent did not use another payment method, such as a credit card or bank transfer. However, as the present decision demonstrates, this is not relevant to the remedy of (current) point 11 of the ADA. There is no "all due care" requirement.
46. Hence, "at the EPO" in point 5.5 ADA means the same as "attributable to the EPO".
47. The Online Filing software, in various versions, are accepted means of filing a debit order (point 1 ADA). This software is issued and maintained by the EPO. The Board has no doubt that the general functioning or malfunctioning of the software is attributable to the EPO, in the sense of points 1 and 7 of the Notice Concerning Safeguards.
48. The EPO's Online Filing software is intended to be installed on users' electronic systems.
If the software supplied by the EPO contained some bug, the effect of which was that any attempted filing between 09:15 and 09:17 on Tuesdays would inevitably fail, that fault would be attributable to the EPO, even though the software was not running on an EPO machine or on EPO premises. The responsibility of the EPO is not limited to its premises and servers.
49. It is difficult to draw a sharp line, where the responsibility of the EPO for a malfunction ends. The Board agrees with the proprietor that the mere possibility that the malfunction is attributable to the EPO is not enough. In the present case, however, the evidence strongly suggests that the software was correctly installed and used on compatible electronic systems. This means that the malfunction was most likely attributable to the EPO. Consequently, the means of filing a debit order using the Online Filing software was not available "at the EPO" within the meaning of point 5.5 ADA.
50. Hence, the payment period was extended under the first sentence of point 5.5 ADA to at least the next day, 23 May 2019. On that day, the payment was successfully made.
51. This means that the opposition was validly filed (Article 99(1) EPC).
The decision contains the slightly confusing remark that: "After the successful uploading of the notice of opposition, it was digitally signed by Mr C, and received the status "ready to send" (see the EPO online filing user guide, page 106). After re-entering his PIN, Mr F initiated the sending of the notice to the EPO (pages 106 to 107). "
ReplyDeleteHowever, eOLF runs locally, on your own PC. If you load a document into eOLF, you don't "upload'" it yet to the EPO server . The signing is also done locally (as far as I know). The meaning of the term upload is "o transfer (something, such as data or files) from a computer or other digital device to the memory of another device (such as a larger or remote computer)" (Merriam -Webster)