T 1338/20 - Covid extension and admissibility appeal

Key points

• "The applicant (appellant) filed a letter dated 19 March 2020 ("the appeal letter") stating "We hereby pay the fee for appeal of EUR 2 255. Our Statement of Grounds of Appeal will follow in due time", and referred to the examining division's decision dated 28 January 2020. On 26 May 2020, the appellant filed its statement setting out the grounds of appeal together with amended claims of its sole request."
• The letter of 19 March 2020 contains no unambiguous statement that it is an appeal and is, hence, no valid Notice of appeal. 
• "In the case at hand, the impugned decision was notified on 28 January 2020. In normal circumstances, the two-month time limit under Article 108, first sentence, EPC for filing the notice of appeal would therefore have expired on 7 April 2020 (Rule 126(2) EPC as valid from 1 April 2015 to 31 October 2023). However, the notices of the EPO concerning disruptions due to the COVID-19 outbreak, dated 16 April 2020 (OJ EPO 2020, A43) and 1 May 2020 (OJ EPO 2020, A60), come into play here. With these notices, the EPO announced that time limits expiring on or after 15 March 2020 were extended for all parties first to 4 May 2020 and then to 2 June 2020 under Rule 134(2) EPC. As per J 10/20, even if there had been no "general dislocation in the delivery or transmission of mail" within the meaning of Rule 134(2) EPC, users could still rely on these publications without suffering any disadvantages."
• Note, there appears to be no requirement that the users (or the EPO) subjectively believe the notices to be legally correct for the principle of legitimate expectations of G 2/97 to apply. See J 10/20. 
• The statement of grounds of May 2020 was, therefore, in time to be a Notice of appeal. It contains the statement: "In the statement of grounds of appeal dated 26 May 2020 (i.e. before the expiry of the extended time limit under Rule 134(2) EPC), the appellant stated that it was writing "further to the notice of appeal dated March 19, 2020, relative to the decision dated January 28, 2020, to refuse the above-referenced patent application".
• The Board considers this statement to meet the requirement that the Notice must state that an appeal is filed.
• The sole claim request of the appellant is not admitted.

EPO 

You can find the link to the decision and an extract of it after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t201338eu1

B. Admissibility of the appeal

2. In its communication under Article 15(1) RPBA, the board pointed to the fact that the appeal letter did not contain a request defining the subject of the appeal under Rule 99(1)(c) EPC. The board concluded that the appeal appeared to be inadmissible for this reason (see section IV., first bullet point, above).

3. Pursuant to Rule 101(1) EPC, the board must reject the appeal as inadmissible if it does not comply with Rule 99(1)(c) EPC, inter alia - unless this deficiency has been remedied before the time limit under Article 108, first sentence, EPC has expired.

4. In the case at hand, the impugned decision was notified on 28 January 2020. In normal circumstances, the two-month time limit under Article 108, first sentence, EPC for filing the notice of appeal would therefore have expired on 7 April 2020 (Rule 126(2) EPC as valid from 1 April 2015 to 31 October 2023). However, the notices of the EPO concerning disruptions due to the COVID-19 outbreak, dated 16 April 2020 (OJ EPO 2020, A43) and 1 May 2020 (OJ EPO 2020, A60), come into play here. With these notices, the EPO announced that time limits expiring on or after 15 March 2020 were extended for all parties first to 4 May 2020 and then to 2 June 2020 under Rule 134(2) EPC. As per J 10/20, even if there had been no "general dislocation in the delivery or transmission of mail" within the meaning of Rule 134(2) EPC, users could still rely on these publications without suffering any disadvantages.

5. In the statement of grounds of appeal dated 26 May 2020 (i.e. before the expiry of the extended time limit under Rule 134(2) EPC), the appellant stated that it was writing "further to the notice of appeal dated March 19, 2020, relative to the decision dated January 28, 2020, to refuse the above-referenced patent application".

6. The requirement in Rule 99(1)(c) EPC is duly met where the notice of appeal states that "an appeal is filed", see Case Law of the Boards of Appeal, 10th ed., 2022, V.A.2.5.2 c). The board holds that the statement reproduced in point 5. above is sufficient in this regard. The appeal is therefore admissible.