SONN Patentanwälte – IP Attorneys

EPO case law: Postal Delivery: negativa non sunt probanda

Although the letters and communications to the party to the proceedings were available to the public by way of electronic file inspection, parties to the proceedings must be able to rely on the EPO complying with the relevant provisions of the EPC regarding postal delivery. At least in order to be heard legally, parties to the proceedings or their representatives have no duty to monitor the proceedings themselves by regularly inspecting the electronic file. It cannot be expected that parties to the proceedings should prove a negative, i.e. the non-receipt of a letter, or provide a plausible explanation for non-receipt (negativa non sunt probanda) (EPO EBoA 29 January 2018, R 0004/17).