Friday, 13 February 2015

Beware of Digital Signature Folders

In the good old times, patent attorneys used to work by messing up the file, scribbling amendments into documents, dictate submissions to the offices and then letting their secretaries do the clean up and prepare the documents and present them neatly in a leather-would signature folder. The attorney would then put his glasses on, leaf through everything put his signature on the documents if everything was to his satisfaction and proceed to the tea break.

While the work distribution of messing up and cleaning up the file is basically unchanged, this blogger sometimes misses the leather-wound signature folder. The electronic equivalent is a PDF-viewer software included in the EPOline client and today's assistants have to prepare neat PDF documents for online-filing rather than writs on handmade paper. The PDF-viewer opens automatically when clicking on the "sign" button in the software and the electronic signature can be applied only after closing the viewer again and confirming that the signature shall be applied indeed. As compared with the leather-wound signature folder, the PDF-viewer is much less classy. Besides of the PDF-documents, it shows a lot of unreadable XML code and leafing through a submission with multiple attachments may be fairly bothersome.

It is therefore tempting to circumvent the clumsy PDF-viewer, have the documents presented on paper (in a leather-wound signature folder if you like) and to trust that your secretary makes sure that what is electronically signed is identical to what you have checked on paper.

This is what the attorney did in the case underlying the decision T 1101/14 available here. In this case, the secretary had been instructed to upload the document with the grounds of appeal but failed to do so. The attorney had applied the electronic signature without remarking that the grounds of appeal were missing. In the request for re-establishment of rights, it was argued that these were two isolated mistakes in an otherwise secure system.

The Technical Board of Appeal did not find the attorney's error excusable. The catchword reads:
A representative who mistakenly signs a statement of grounds of appeal having most of its pages missing must, in the absence of special circumstances which could justify the representative's mistake, be considered not to have taken all due care required by the circumstances.

What can the attorneys learn? We have to leaf through the electronic documents in the PDF-viewer before applying the electronic signature and are not entitled to blame the secretary if something is missing.


Anonymous said...

It is not so difficult to get this wrong. Especially, when filing multiple documents of similar name - First Request, Second Request etc, when you might miss out the Main Request because its seems sensible that the First Request is the first document to enclose!

Sometimes you have to sit back and review things slowly -one painful page at a time!

Michael Thesen said...

Really painful, indeed. I really prefer reviewing things on paper but it is difficult do you make sure that the paper is identical to the electronic version.

Tufty the Cat said...

Amazingly, according to the EP register all 3 applications are still with the representative.

Tufty the Cat said...

Interestingly, it appears that the secretary took the hit for the mistake, as she is referred to in the past tense in the facts supporting the request for re-establishment.

Tufty the Cat said...

I disagree, by the way, with the first two commenters. In my opinion, it is absolutely imperative that the EPA checks that the documents that have been prepared ready for signing are correct within the viewing software. I have never considered it to be a sensible practice to check a printout on the assumption that what you see on paper will be the same as what has been uploaded. Regardless of how reliable your secretary is, you should never assume that they will be the same. Those attorneys who are used to signing paper documents, and who haven't grown up with electronic documents, are probably those most in danger of falling into this trap. This appears to be the case here, as the attorney in question qualified in the 1980s. This case should be a wake-up call for such attorneys, who really need to get used to properly checking things on screen. The quality and size of screens that are available nowadays really leaves no room for excuses.

Anonymous said...

"...the attorney in question qualified in the 1980s."

Looks like a divisional was filed before the original decision to refuse was issued, so the applicant might not actually be affected very much (I haven't reviewed the content of parent or divisional).

Quite an old school move but it may have saved the day in this case.