R. 134(2) EPC provides for a time limit to be extended if it expires on a day on which there is a general dislocation in the delivery or transmission of mail in a contracting state or between a contracting state and the EPO. The duration of the period of dislocation shall be as stated by the European Patent Office. The term "general interruption" was deleted in the process of revising R. 85(2) EPC 1973. However, as evidenced by the preparatory documents, the retained term "dislocation" also refers to interruptions (CA/PL 17/06, p. 356). Decisions which interpret the term "general interruption" are still cited in the following as an aid to interpreting the "general dislocation" referred to in R. 134(2) EPC.
In J 4/87 (OJ 1988, 172) the board reaffirmed that in the event of an unforeseeable postal delay causing non-compliance with a time limit, the EPO had no discretion to extend the time limit other than in the cases referred to in R. 85(2) EPC 1973.
In J 11/88 (OJ 1989, 433) the board held that any time limit under the EPC 1973 which expired within the period of interruption or dislocation was extended by operation of law. Accordingly, if the President of the EPO did not issue a statement as to the duration of that period, because he did not have the relevant information at the right time, this could not affect the rights of a person adversely affected by the interruption or dislocation. Whether or not an interruption qualified as a "general interruption" was a question of fact, which had to be decided in the light of any credible information available; in case of doubt, the EPO should make official enquiries of its own motion in application of Art. 114(1) EPC 1973.
In J 3/90 (OJ 1991, 550) the Legal Board of Appeal interpreted the concept of a general interruption, explaining that R. 85(2) EPC 1973 was not restricted to nationwide interruptions. In the case at issue, the board decided that the limited geographical extent of the disruption did not disqualify the interruption from being general. Whether or not a representative had undertaken all possible measures to avoid the effects of a postal strike was not a relevant test under R. 85(2) EPC 1973.
In J 1/93 the Legal Board of Appeal again stated that for an interruption in the delivery of mail under R. 85(2) EPC 1973 to be considered general in character the public in general residing in an area of some magnitude, even if of limited geographical extent, had to be affected. The loss of a single mailbag might affect a number of individual addressees but not the public in general.
In J 14/03 the board confirmed that evidence of a disruption within the meaning of R. 85(2) EPC 1973 provided by the appellant can lead to a retrospective extension of time in a particular case, as occurred in J 11/88, if this evidence, had it been known at the time, would have been such as to warrant a Presidential statement under R. 85(2) EPC 1973. However, in contrast to the probative value of the evidence in J 11/88, in the case at issue the evidence was inconclusive.
Date retrieved: 30 December 2018