J 0009/82 (Calculation of aggregate time limits) of 26.11.1982

Summary of Facts and Submissions

I. On 8 April 1981 the European Patent Bulletin mentioned the publication of the European search report on application No. 80200840.9. On 14 April 1981 the Receiving Section of the European Patent Office informed the applicant's representative that pursuant to Article 94(2) and (3) he had six months as from that mention to file a request for examination and to pay the corresponding fee.

II. In the event, it was only on 12 October 1981 that the written request dated 6 October 1981 was registered at the EPO and the BNP in Paris entered the examination fee in the Office's account.

III. By registered letter of 26 October 1981, the Receiving Section informed the representative that since the request for examination had not been filed in due time, he had a period of grace of two months "from 9 October 1981" to remedy that deficiency, provided he paid a surcharge, and that otherwise the patent application would be deemed to be withdrawn. On 6 January 1982 the Receiving Section informed the representative that the patent application had been deemed to be withdrawn since the request for examination had not been filed and the fee had not been paid within the period set. However, on 12 January 1982 the Receiving Section was informed by the Cash and Accounts Department that on 9 December 1981 the latter had registered the payment of the surcharge. On 13 January 1982, therefore, the Receiving Section informed the representative that its letter of 9 January should be disregarded as the surcharge had since been registered but that the patent application was nonethless deemed to be withdrawn because the surcharge had been paid later than 8 December 1981.

IV. On 18 January 1982 the representative claimed that the payment registered on 9 December 1981 was still within the two-month period referred to in the letter of 26 October 1981. On 28 January 1982 he was informed that pursuant to Rule 83 EPC the time limit in question expired on 8 December not 9 December 1981.

V. In a decision of 29 March 1982, the Receiving Section held that the filing of the request for examination, the payment of the corresponding fee and the payment of the surcharge had all been done out of time. It therefore maintained the point of view expressed in its letter of 13 January 1982 that the patent application had to be deemed to be withdrawn and that the two fees paid should be reimbursed.

VI. On 26 May 1982 the representative formally appealed against that decision relying on the grounds he had put forward on 5 March 1982. Since he had acted in "good faith", he asked the Board's "indulgence", claiming principally: - that the request for examination had been filed and the corresponding fee paid on 6 October 1981 which he regarded as within the time limit; - that the period for paying the surcharge expired not on 8 December but on 9 December 1981 and that it had accordingly been validly paid. He therefore claimed that the decision of 29 March 1982 be overturned and that the patent application be allowed to stand.

Reasons for the Decision

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

2. Under Article 94(2) EPC, "A request for examination may be filed by the applicant up to the end of six months after the date on which the European Patent Bulletin mentions the publication of the European search report." In this instance it is established that the mention in question appeared on 8 April 1981. The request should, therefore, pursuant to Rule 83(4), have been filed by "the day (of the month) which has the same number as the day" on which the event determining the start of the time limit occurred, namely 8 October 1981. The request did not reach the EPO until 12 October 1981 and was therefore out of time; the date of 6 October 1981 entered by the applicant at the top of the document cannot be regarded as a decisive date.

3. As regards payment of the examination fee, Article 94(2) further provides (second sentence). "The request shall not be deemed to be filed until after the examination fee has been paid", clearly showing that that fee had to be paid within the same six-month time limit, namely by 8 October 1981. In fact the fee of FF 4 160.00 was not entered in the account held by the Office until 12 October 1981. The effect of Article 8(1)(a) of the Rules relating to Fees, in conjunction with Article 5(1)(a) of those Rules, is that the date on which the amount is entered in an account held by the Office is the date on which payment to a bank account held by the Office is considered to have been made. This is a second reason lending support to the one mentioned above, why the request for examination cannot be considered to have been filed within the time limit.

4. As regards payment of the surcharge, Rule 85b EPC provides that if the request for examination has not been filed within the time limit provided for in Article 94(2), it may still be validly filed within a period of grace of two months after the expiry of the preceding time limit, in this case by 8 December 1981, provided that a surcharge is paid. The representative thought that he had met that requirement by paying the amount of the surcharge, FF 2 550 00, on 9 December 1981. As stated above, the effect of Rule 83(4) is that a period expressed in months expires "on the day which has the same number as the day" on which the reference event, in this instance the expiry of the normal time limit, occurred. The time limit therefore expired on 8 December 1981 and not 9 December 1981.

5. Since the provisions on the calculation of time limits in Rule 83 are clear, the Board does not have the power to interpret them and cannot "exercise indulgence" because of the "good faith" shown by treating the day following the expiry of the time limit as the day on which it expired despite the somewhat ambiguous wording chosen by the Receiving Section in the notification of 26 October 1981. ".... a period of grace of two months from 9 October 1981....". In fact the Receiving Section was referring by implication to Rule 83(2) providing: "Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period." It would perhaps have been better to say "a time limit starting to run on 9 October 1981 and expiring on 8 December 1981". It is perfectly clear that the principle laid down by Rule 83(2) cannot be regarded as somehow overriding the provision in Rule 83(4) applying specifically to time limits expressed in months. There is all the less reason for such a method of calculation surprising the applicant's representative since it also applies under the almost indentical wording of Article 641, paragraph 2, of the new French Code of Civil Procedure. As far as the EPO is concerned, the method has moreover been explained and discussed in Legal Advice by the European Patent Office No. 5/80 on "Calculation of aggregate time limits" (OJ EPO 6/1980, 149), sent to the appellant in the present proceedings on 28 January 1982, i.e. before the decision of the department at first instance.

6. In the light of the foregoing, since the request for examination was filed out of time and the examination fee and the surcharge were paid after the expiry of the time limits, the contested decision deeming the European patent application to be withdrawn should be maintained.

ORDER

For these reasons, it is decided that:

The appeal against the Decision of the Receiving Section of the European Patent Office dated 29 March 1982 is rejected.