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Intellectual Property Law

: IPKat

An "OK" is ok with the EPO

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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The IPKat noticed on le blog du droits européen des brevets a mention of an interesting little decision from the EPO boards of appeal, T 580/06, which relates to whether fax transmissions can be relied on. The headnotes of the case read:

"Der "OK"-Vermerk auf dem Sendebericht eines Telefax ist als Beweis für die fehlerlose und vollständige Zustellung anzusehen, durch welche das Telefax in den Verantwortungsbereich des Empfängers gelangt ist (Nr. 1.5).
Ist das Telefax, wie durch den "OK"-Vermerk angezeigt, in den Verantwortungsbereich des Empfängers gelangt, so findet ein Risikoübergang statt, wobei der Empfänger die Risiken seiner eigenen Sphäre zu tragen hat (Nr. 1.4.2). "

Roughly translated, when a fax is transmitted and an "OK" is noted by the sender, this is evidence that the transmission was successful. The responsibility for the fax then lies with the recipient. In this case, the fax transmission related to payment of an appeal fee. A crucial fax from the EPO informing the representative that there were insufficient funds in their account (in accordance with Article 6.2 of the EPO arrangements for deposit accounts) was allegedly not received, with the effect that the appeal fee could not be paid in time.

Since the EPO's view was that the fax transmission was successful, the representative could not claim that they did not actually receive the fax because, while the responsibility of sending the fax lay with the sender, once the "OK" was indicated the responsibility for receipt then lay with the receiver. However, as the representative managed to show that this was an isolated occasion, re-establishment of rights (under Article 122 EPC) was allowed.

The IPKat thinks that this reasoning makes sense (as far as he can work out from the French and German sources), because fax transmissions are generally quite reliable and are used so much in patent matters that not being able to rely on them would cause all sorts of headaches. This case is, however, a reminder for those wishing to rely on notifications from the EPO to keep them from missing deadlines (never, in this Kat's opinion, a great idea) that they must make sure their machines and office practices are in good working order. The IPKat also wonders whether the same reasoning would apply if the tables were turned and the EPO instead alleged that they did not receive a fax that a sender could prove had been sent. Is the EPO receiving system infallible, or could this feasibly occur?

Full post as published by IPKat on September 04, 2008 (boomark / email).