G 0002/97 - "Good faith" - #77

Citation rank: 77
No. of citations: 63

G 2/97 looked at the general relationship between the EPO and parties. It found that the parties to proceedings before the EPO had a right to trust information received from the EPO during the procedure.

G 2/97 states:

"The protection of the legitimate expectations of users of the European patent system requires that such a user must not suffer a disadvantage as a result of having relied on erroneous information received from the EPO (J 2/87, OJ EPO 1988, 330, Motorola) or on a misleading communication (J 3/87, OJ EPO 1989, 3, Memtec)." (point 4.1 of the reasons)

According to G 2/97, if the protection of legitimate expectations requires the EPO to warn the applicant of any loss of rights, if such warning can be expected in all good faith, this requires that the deficiency can be readily identified within the framework of the normal handling of the case at the relevant stage of the proceedings and the party in question is in a position to correct it within the time limit.

The Enlarged Board of Appeal in G 2/97, however, saw no justification for the suggestion that the principle of good faith imposes on a board an obligation to warn a party of deficiencies within the area of the party’s own responsibility.

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Order:

The principle of good faith does not impose any obligation on the boards of appeal to notify an appellant that an appeal fee is missing in the circumstances mentioned in the question referred, ie when the notice of appeal is filed so early that the appellant could react and pay the fee in time, if there is no indication--either in the notice of appeal or in any other document filed in relation to the appeal--from which it could be inferred that the appellant would, without such notification, inadvertently miss the time-limit for payment of the appeal fee.

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