Opinion by PCC on file retention policies

The Professional Conduct Committee (PCC) provides opinions upon enquiries from epi members under Art. 7(c) of the epi Code of Conduct. Any opinion given does not have regulatory force and is prepared with the intention to provide helpful assistance. No liability of any kind attaches to the epi, the Professional Conduct Committee or any members of that Committee in respect of these opinions. In accordance with Article 7(c) CoC, opinions of the Professional Conduct Committee shall not be binding on the disciplinary bodies. The following opinion has been considered useful for epi members as the questions it addresses are particularly significant. Hence, it has been decided to publish it, in anonymised form.

Summary of enquiry

The Enquiring Member raises three questions, all pertaining to file retention policies as they apply to paper (or other hard copy) file documents.

The questions are:

how long should paper files be retained,
for example, if this is X years from an end date, what things qualify as an “end date”, and what is X, and
if files are scanned, what categories of documents, if any, should be retained as paper originals?

Summary of Opinion

For reasons explained below PCC recommends that any paper file is retained for five years after the end of a representative’s responsibility for the case forming the subject of the file. (Question (a)) This five-year period is consistent with the period of limitation of responsibility in respect of failures to comply with professional obligations, as set down in Article 26(1) of the Regulation on Discipline for Professional Representatives (“RDR”).

This end date is likely to be variable from case to case and it is not possible to give guidance on when it may occur in specific cases. We do however include below some questions that we hope will be of assistance in establishing when in a given case the end date of responsibility has been reached. (Question (b))

The Enquiring Member is urged to have regard to any relevant national statutory or regulatory provisions that have effect in the country/countries in which the Enquiring Member’s business is established. In particular the Chamber thinks it very unlikely that any failure to observe a national legal or regulatory requirement will be excused by referring to this opinion.

As regards Question (c) it is not possible within the scope of this opinion to produce a definitive list of classes of document that must be retained as paper originals. PCC nonetheless recommends that any document the legal validity of which depends on the presence of an original signature, a seal, a hologram, an embedded or attached microchip or any other validating feature should be kept in hard copy form unless it is transferred in an intact condition to a newly instructed representative; or consent is given by the client to dispose of or destroy the document.

Similarly any documents stated to be valid only in original form (or stated not to be valid if in the form of a copy) must be retained unless transferred intact to the newly instructed representative; or disposal/destruction consent is given.

In the event of no new representative being instructed in a particular matter PCC recommends returning, via a reliable delivery means, any documents in the foregoing categories to the entity the representative most recently has regarded as his/her instructing principal. It is recommended that the importance of keeping such documents safely is emphasised to the recipient.

Relevant Provisions

There are few directly relevant legal or regulatory provisions pertaining to the questions raised. To the extent any provisions are relevant these are mentioned in the Opinion below.

Opinion

Code of Conduct of epi (“CoC”)

The CoC as presently in force does not include any specific provision relating to the keeping of filesThis aspect is under consideration within the Professional Conduct Committee. It is hoped that provision pertaining to file retention policy can be added to the CoC before the end of 2025.. Hence the CoC does not provide guidance.

Investigations of certain national laws undertaken by the Professional Conduct Committee indicate that where national laws specify a minimum file retention period this consistently is at least 5 years, with longer periods applying in some jurisdictions and in some special circumstances. In view of this the opinion of PCC is that a five-year retention policy represents the minimum that can be recommended.

For the avoidance of doubt this recommendation does not preclude the keeping of files for more than five years if this is desired, or if the circumstances make this a requirement.

Regulation on Discipline for Professional Representatives (“RDR)

RDR also does not include specific provisions concerning file retention policy. Hence it does not provide guidance on for how long a file should be retained. However, as mentioned, Article 26(1) RDR bars proceedings in respect of a failure to comply with professional obligations once five years have elapsed; and this is consistent with the recommended five-year file retention period indicated above.

PCC further comments that Article 18 RDR requires the representative, in the event of proceedings arising against him/her before one of the disciplinary bodies, to make available any of his/her files requested by the body. This requirement however does not appear to create any obligation to store files or documents for any particular period after an end date (although it does appear implicitly to create an obligation to preserve any existing files if disciplinary proceedings are commenced against a member).

European Patent Convention (“EPC”)

Rule 147(4) EPC specifies that the EPO must preserve files for at least five years from one of three specified end dates. The opinion given herein is essentially consistent with the EPO’s obligation in Rule 147(4) EPC.

Documents Requiring Keeping in Original Form

As discussed in this opinion, in a few instances preservation of original, hard-copy documents is desirable or unavoidable. Chiefly this arises when the legal validity of a document depends on the existence of a physical artefact or production of the original; or when copies are defined in law not to be valid.

In such a case it is important of course for the original documents to be kept carefully, i.e. in an intact, accessible form.

When there is a need to transfer a file to a new representative there can arise uncertainty over where the responsibility for keeping original documents, falling in to this category, lies.

PCC suggests that this uncertainty can be addressed by the former representative transferring hard copy documents on condition that the newly instructed representative keeps them in a serviceable condition and makes them available to the former representative in the event of the latter being held to account for any of his/her actions.

Such conditional transfer can be effected for instance by the former representative indicating, in advance of the transfer to the new representative, that the files will be transferred on this basis. The former representative can give the new representative a reasonable time, which it is suggested does not need to be more than (say) seven days, to object to the conditional document transfer. If the new representative does not object then the former representative may transfer the documents with reasonable confidence that they will be made available should this need arise in the future.

What is the “End Date”?

It is not possible to provide general guidance as to when a representative’s responsibility for a matter has ended. The circumstances will differ from case to case and the criteria determining when an end date has occurred also will differ.

However PCC believes it is possible to specify certain questions that help to indicate whether an end date has been reached.

The questions are:

Am I the only person able to take a particular step in the interest of the client at this stage?
Am I the only person having access to documents or information of relevance to the matter?
Is there any other indicator that I may have retained a degree of responsibility for the well-being of the matter?

If the answer to Question (i) is “yes” this indicates that the representative may not have been released from responsibility for the matter. On the other hand if the answer to Question (i) is “no”, and there exists an instruction to transfer responsibility to another representative, this is an indication that someone other than the initially instructed representative has acquired responsibility.

On the other hand if the initially instructed representative is the only person with access to relevant documents or information (Question (ii)) this implies that a transfer of information to a new representative has not been adequately completed. In such a situation either the initially instructed representative may have an obligation to take steps based on access to the documents or information in question; or he/she has acquired an obligation to transfer the documents/information to a new representative.

Question (iii) is a catch-all question intended to prompt the initially instructed representative to identify any further reason why he/she has retained some obligation in relation to the matter.

If the answers to all three questions are negative this implies that an end date probably has been passed and the recommended minimum file retention period has started to run.

Note on National Laws

As indicated in the summary above, it is not possible for PCC to comment on the impact of national laws. Nonetheless it is strongly recommended that representatives have regard to relevant national laws when determining file retention policies. In particular representatives should be cognisant of the principle of “lex superior derogat legi inferiori”, and be prepared to identify instances of national laws, regulations and codes of conduct taking precedence over for example this opinion.

This opinion does not have regulatory force and is prepared with the intention to provide helpful assistance. No liability of any kind attaches to the epi, the Professional Conduct Committee or any members of that Committee in respect of this opinion. In accordance with Article 7(c) Code of Conduct of the Institute of Professional Representatives before the European Patent Office, the opinion of the Professional Conduct Committee shall not be binding on the disciplinary bodies.