J 2/25: When is the Last Day not the Last Day? When the EPO’s online filing fails

The Legal Board of Appeal has again decided that a divisional application filed after the publication of the mention of grant may be treated as validly filed. The earlier decision to that effect (J 1/24) relied on an appeal by the patentee against the decision to grant the parent – the divisional was thus filed after the parent’s date of grant but while the decision to grant was suspended by the appeal (and the EPO had deleted the publication of the date of mention of the grant in the EPO bulletin). As an earlier comment on this blog observed, J 1/24 offers a risky route to a valid late-filed divisional being at odds with the earlier Legal Board decision J 28/03 and having been roundly criticized in the later (albeit obiter) Technical Board decision T 700/25.

Now, in J 2/25 of 12 August 2026 the Legal Board has opened a new path to “after the Last Day” filing of a divisional application. It seems to be more soundly grounded in the law than J 1/24 but it requires unexpected events beyond the control of the applicant – the non-availability of one or more of the EPO’s usual channels of online application.

The message is “in procedures before the EPO, the application of the principle of protection of legitimate expectations implies that the user must not suffer a disadvantage as a result of having relied on erroneous information or a misleading communication received from the EPO”, since “it would constitute a disproportionate and unjustifiable burden to the users of the European patent system if they could not rely on the publications by the EPO and if they could lose rights irreversibly when doing so.“

The Legal Board of Appeal held that an applicant who cannot file online because of a malfunction attributable to the EPO may rely on the EPO's published information stating that the malfunction of a single means of filing attributable to the EPO suffices to avoid adverse consequences. Hence, if the EPO makes online filing impossible, the applicant is allowed to file the next day when online filing is possible. The limitation is that the evidence must show that online filing was not available. The advantage is that the principle should apply to all filings prevented by EPO outages and even cases where other remedies, such as re-establishment, are unavailable. Fortunately, the applicant does not have to try every available means of filing before those safeguards apply.

Background

The case concerned a divisional application. On 28 November 2023, the day before the mention of the grant of the parent was published, several attorneys of the representative's firm tried to file via Online Filing, Online Filing 2.0 and the Contingency Upload Service (CUS). Each attempt failed with a certificate validation error. Filing succeeded only on 29 November 2023, when the parent was no longer pending. The Receiving Section refused to treat the application as a divisional. It acknowledged a fault on the EPO's side for Online Filing and Online Filing 2.0, but noted that it had no record of a CUS outage.

The Board's reasoning

The Board set aside the decision under appeal, ordered that the application be processed as a divisional and reimbursed the appeal fee:

•       The Notice on outages of means of electronic filing (OJ EPO 2020, A120) is a source of legitimate expectations. Under points 30 and 31, the malfunction of a single means of filing attributable to the EPO suffices to avoid adverse consequences.

•       The Notice does not require users to exhaust all alternative filing means.

•       The bare statement that there was no record of a CUS outage did not rebut the appellant's evidence – “we have no record that it didn’t work” was not enough to gainsay “we actually tried it and it didn’t work”. The decision was insufficiently reasoned (Article 113(1) EPC).

Practical takeaways

The decision concerned a divisional, but its reasoning extends to any filing affected by an outage attributable to the EPO. It is particularly relevant where no legal remedy is available, such as divisional applications or new applications.

The key point is that applicants are not required to work through every conceivable filing route. In particular, if online filing services fail one does not need to file the application via an automated mailbox. They may rely on the EPO's official statements. According to OJ EPO 2023, A50, the CUS is the EPO's designated contingency measure for cases where the online filing services are unavailable, or for urgent cases. It allows PDF documents to be uploaded without creating or signing in to an EPO account. Where the standard tools fail, the CUS is therefore the appropriate fallback, and the Board confirmed that users may objectively rely on it as such (Reasons 28).

To benefit from the safeguards, users should

1.      switch to the CUS without delay, if Online Filing, MyEPO or Online Filing 2.0 fail,

2.      secure evidence by taking screenshots of error messages and logging all attempts with the time,

3.      inform EPO Customer Services immediately, since only the EPO’s technical services can confirm that the outage is attributable to the EPO.

Image: Karl Bryullov, Public domain, via Wikimedia Commons,The Last Day of Pompeii: how it feels on the last day for filing a divisional when the EPO services are down