Some things, such as filing new applications and filing responses to examination report, have been possible via epoline for some time. What was not possible, however, was filing appeal documents electronically. This was emphasised by the decision of T 765/08, in which an appeal was deemed not to have been filed because the documents were filed via epoline, even though the fees were duly paid and the documents apparently filed without trouble. This strange situation was rectified by decision of the EPO President dated 26 February 2009, which simply stated that "Documents in proceedings under the EPC may be filed with the European Patent Office in electronic form", although included some quite specific requirements on what was meant by a signature, which needed to accompany any documents filed electronically. According to Article 7 of the decision, a signature could be various things:
(1) Where filed documents require signature, subject to Article 8 this may take the form of a facsimile signature, a text string signature or an enhanced electronic signature.
(2) A facsimile signature shall be the facsimile reproduction of the filing person's signature.
(3) A text string signature shall be a string of characters, preceded and followed by a forward slash (/), selected by the signatory to provide evidence of his identity and of his intent to authenticate the message in question.
(4) An enhanced electronic signature shall be an electronic signature either issued by the European Patent Office or accepted by it.A recent decision, T 1427/09, has now clarified what happens if documents that are filed online do not have a valid signature. In this case, a notice of appeal and grounds of appeal were filed in time, but neither carried a signature of the authorised attorney on the case. The electronic signature used to file the documents instead related to two different people, neither of whom were authorised. The EPO appeal board then issued a communication stating that the documents were deemed not to have been signed, and invited the appellant to file signed copies within two months. The appellant then filed the documents, with a handwritten signature, by fax.
The only issue to be decided was what, if any, legal consequences there were for not having the documents signed, since both the decision of the President and Rule 2(2) EPC were silent on the matter, although Rule 50(3) possibly allowed this kind of defect to be rectified. As far as the Board was concerned, the principle that the signature of an unauthorised person shall be treated like a missing signature should apply not only to handwritten signatures but also to electronic signatures. As a result, the electronic signature of an unauthorised person should be treated under Rule 50(3) like the filing of an unsigned document received by mail or fax. The signed copies were received in time, so the appeal was deemed to have been filed, the documents receiving their original electronic filing date.
The IPKat thinks that, although this decision is pretty esoteric, it is very important for anyone considering filing anything electronically at the EPO. Mistakes will inevitably happen, and not having the correct electronic signature would, the IPKat imagines, be a very easy mistake to make. Thankfully, it will be a mistake that is correctable and not fatal.
More about electronic signatures here (they are more complicated than you might think).
