J 0001/81 (Public holiday) of 24.11.1982

Summary of Facts and Submissions

I. The European patent application (80400601.3) in question was filed on 5 May 1980. Pursuant to Article 78(2) EPC, the filing and search fees should normally have been paid "within one month after the filing of the application", i.e. on 5 June 1980, or else, on payment of the surcharge referred to in Rule 85a EPC, within a period of grace of two months after the expiry of that time limit.

II. In fact correspondence between the EPO and the Banque Nationale de Paris (BNP) (France/Etranger Branch in Paris) revealed that the appellant delivered to that bank on 4 June 1980 a cheque for FF 9430.00(filing, search and designation fees) which was not entered in the EPO account until 6 June 1980. By letter of 16 July 1980, the Receiving Section informed the appellant of the existence of a period of grace provided for by Rule 85a, subject to payment of a surcharge, but the appellant did not think it was necessary to pay such a surcharge stating by letter received on 8 August 1980 that "all the fees had been paid by him within the time limits".

III. By decision of 17 September 1980, however, the Receiving Section considered that the fees had been paid after the expiry of the time limit and that the European patent application was therefore deemed to be withdrawn pursuant to Article 90(3) EPC. In reply to the appellant's submissions, it was stated in the grounds of that decision that under Article 8(1) of the Rules relating to Fees, the date on which a payment or transfer to a bank account takes effect is the date on which the amount in question is entered in a bank account held by the Office.

IV. The appellant duly appeals against that decision filing a notice of appeal on 14 November 1980 and Statements of Grounds on 14 November 1980 and 16 January 1981 and paying the appeal fee within the two-month time limit laid down by Article 108 EPC. The appellant bases his appeal on the following main arguments:

1. The receipt issued to him by the BNP on 4 June 1980 bearing the words "credited to the payee subject to the cheque being met..." showed that payment was in fact made on 4 June 1980, i.e. within the one-month time limit laid down by Article 78(2) EPC.

2. He can rely on both Article 8(3)(a) and Article 8(3)(b) of the Rules relating to Fees since he had made the payment "within the time limit" and given a transfer order also within the time limit.

3. The French Patent Office (INPI) in Paris and the BNP had told him that it was enough for him to effect the payment "before 5 June 1980".

4. Finally, he could not be held responsible for the BNP taking two days to credit the EPO account.

V. A decision on this appeal was suspended pending possible retroactive amendment to the Rules relating to Fees and in particular Article 8. On 22 April 1982, when this possibility appeared to be ruled out, the appellant was informed and invited to submit his observations within three months.

VI. In a letter of 20 July 1982, the appellant stated that he maintained his appeal and restated his previous arguments principally claiming that, in his view, payment by a cheque delivered to the "France/Etranger" Branch of the BNP in Paris should be regarded as payment effected on the date of actual delivery of the cheque. However, a further letter of 5 October 1982 drew the appellant's attention to the fact that 5 June 1980 had been a public holiday in Munich, the seat of the EPO, and that the time limit in question could therefore be extended to 6 June 1980 with the result that the payment in question was to be regarded as valid.

Reasons for the Decision

1. The appeal complies with Articles 106, 107 and 108 and Rule 64 EPC and is, therefore, admissible.

2. Article 8(1) of the Rules relating to Fees provides: "The date on which any payment shall be considered to have been made to the Office shall be as follows: (a) in the cases referred to in Article 5, paragraph 1(a) (i.e. by payment or transfer to a bank account held by the Office)...: the date on which the amount of the payment or of the transfer is entered in a bank account... held by the Office".

3. The date of the payment in question cannot be that on the cheque receipt issued to the appellant by the bank, namely 4 June 1980, but is that on which the amount was entered in the account held by the EPO, i.e. 6 June 1980. That is clear beyond all shadow of doubt from Article 8 of the Rules relating to Fees. There is no contradiction with the text of the receipt, which expressly mentions that it is subject to the cheque being met. Furthermore it should not come as any surprise to a French appellant since French national law is the same, with Article 62 of the Décret-Loi (Decree-Law) of 30 October 1935 standardising the law on cheques including the following provision: "La remise d'un chèque en paiement, acceptée par un créancier, n'entraîne pas novation. En conséquence, la créance originaire subsiste, avec toutes les garanties qui a'y rattachent, jusqu'à ce que ledit chèque soit payé". (Delivery of a cheque as payment accepted by a creditor does not result in novation. In consequence the original debt continues to exist, with all the guarantees it entails, until the cheque is paid). It is even stated in non-specialised works such as the Encyclopedia Universalis for example where the entry under "Payment" referring to delivery of a cheque states "elle ne constitue pas un véritable paiement" ("it does not constitute real payment") and regarding transfers states "l'inscription au crédit du bénéficiaire détermine en principe la date du paiement"("in principle the date of payment is determined by when it is credited to the payee") (op.cit.,pp. 366 and 367).

4. The appellant further cannot rely on Article 8(3)(a) of the Rules relating to Fees as he purports to do. That provision relates to payment made or a payment or transfer order given "not later than ten days before the expiry of such period" which was not done in this case.

5. On the other hand it is germane that under a Notice from the President of the EPO dated 10 March 1980, 5 June 1980 (Corpus Christi) was included in the list of public holidays in Munich where, pursuant to Article 6(2) EPC, the European Patent Office has been set up and where the Office was not open for the receipt of documents (OJ EPO 1980, 91). Rule 85(1) EPC provides: "If a time limit expires on a day on which the European Patent Office is not open for receipt of document or on which... ordinary mail is not delivered in the locality in which the European Patent Office is located, the time limit shall extend until the first day thereafter on which the European Patent Office is open for receipt of documents and on which ordinary mail is delivered."

6. The wording of Rule 85(1) leaves no doubt that it is applicable to all time limits whether for "receipt of documents" in the strict sense of "documents" or for forms of payment. The provision refers to the expiry of "a time limit" without any qualification.

7. Since the time limit was extended by law, it is irrelevant whether the payment could in fact have been effected, for example, in Munich itself, even though the Office was closed, by putting a cheque in the letter box directly or, as in this case, by delivery to the counter of a bank in Paris. The question of to what extent this principle applies to the branch at The Hague as well does not arise in this instance.

8. In conclusion, although the payment in question was legally effected on 6 June 1980, i.e. after the expiry of the normal time limit on 5 June 1980, it must nevertheless be regarded as valid since in this instance the time limit had been extended by one day. The contested decision should therefore be overturned.

9. Since the failure to take account of Rule 85(1) EPC constitutes a substantial procedural violation, reimbursement of the appeal fee should be ordered pursuant to Rule 67 EPC.

ORDER

For these reasons, it is decided that:

1. The Decision of the Receiving Section of 17 September 1980 is set aside.

2. Reimbursement of the appeal fee is ordered.