Under the EPO Notice dated 3 December 2003 concerning the electronic filing of documents (OJ 2003, 609) the electronic filing of documents was not admissible in opposition and appeal proceedings. This is no longer applicable, see Decision of the President of the EPO dated 9 May 2018 (OJ 2018, A45). There are numerous cases which deal with the electronic filing of the appeal before this became permissible. In the earlier cases, the boards accepted that the appeals were admissible on the basis of the principle of legitimate expectation, see T 781/04 of 30 November 2005 date: 2005-11-30 and T 991/04 of 22 November 2005 date: 2005-11-22 (for more details see "Case Law of the Boards of Appeal of the EPO", 6th ed. 2010, VI.A.2.2.); this changed once a warning had been built into the epoline^®-system that the filing of appeals by electronic means was not permitted (T 331/08).

In T 1764/08, the appellant filed its statement setting out the grounds of appeal via epoline^® on the very last day of the period specified in Art. 108, third sentence, EPC. The board held that, even if the EPO had warned the appellant, the warning would not have allowed the appellant to re-file the statement of grounds of appeal by an acceptable means within said period. Therefore, under the principle of good faith, there was no duty on the part of the EPO to warn the appellant. To that extent, the case in hand differed from cases T 781/04 date: 2005-11-30, T 991/04 of 22 November 2005 date: 2005-11-22, T 514/05 and T 395/07, where the deficiency could have been identified in good time before the expiry of the relevant period.