J 0016/82 (Assistant; substitute) 02-03-1983
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I. An "assistant" within the meaning of Decision J 05/80 of the Legal Board of Appeal dated 7 July 1981 (OJ EPO 1981, p. 343) includes a substitute replacing an assistant who is on leave, ill or absent for some other reason. The same standard of care must be exercised as regards the choice, instruction and supervision of the substitute as of the assistant himself.
II. If an appeal is finally deemed not to have been filed because the appeal fee was not paid in due time, that fee must be reimbursed automatically (further to Decision J 21/80 dated 26 February 1981 in OJ EPO 1981, page 102).
Assistant/substitute
Standard of care
Reimbursement of appeal fee
Appeal fee reimbursement of
I. The appeal is directed against the Decision of the Receiving Section of the European Patent Office dated 14 May 1982 refusing an application by the joint applicant and common representative of the applicants (Rule 100) for retroactive recognition of a priority.** Application No. 82 100 130.2. The representative received the contested decision on 17 May; pursuant to Rule 78(3) EPC it is deemed to have been notified to him on 24 May. The notice of appeal, together with the Statement of Grounds, was filed with the EPO on 4 June 1982. No appeal fee was paid at that time.
II. A letter from the rapporteur of the Board of Appeal dated 29 October 1982 drew the representative's attention to the fact that the appeal fee had not been paid and that therefore, pursuant to Article 108, second sentence, EPC, it was deemed that the appeal had not yet been filed and thus had not been filed and that the possibility existed of filing an application for re-establishment of rights pursuant to Article 122.
III. By letter dated 11 November 1982, received on 12 November 1982, the representative filed an application for re-establishment of rights and enclosed a cheque to cover the appeal fee and the fee for this application. As grounds for the application he stated that he had given his firm's accounts department instructions to pay the fee, but that those instructions had not been carried out. The head of the accounts department had been on holiday and had been replaced by a substitute. That substitute had "since been given notice, also because of further proven instances of unreliability." The rapporteur pointed out that those facts did not constitute grounds for re-establishment of rights and the representative then further stated that the substitute responsible for the omission had appeared to offer every guarantee of reliability since he had had responsibility, as a holiday replacement, for the whole accounts department of an undertaking employing some 60 staff. The substitute's training and previous experience gave every indication that he would correctly carry out the duties assigned to him."
1. The substantive appeal submissions can only be considered if it is established that an appeal within the terms of Article 106 EPC et seq. has been filed and is admissible under Article 110(1) EPC.
2. One of the conditions for a valid appeal is that the appeal fee must be paid within the two-month time limit laid down by Article 108 EPC. Otherwise, pursuant to Article 108, second sentence, EPC the appeal is deemed not to have been filed (see Decision of the Legal Board of Appeal J 21/80 dated 26 February 1981, OJ EPO 1981, p. 101).
3. The fact is not disputed that the appeal fee was not paid until three months after the expiry of the two-month time limit, namely not until the rapporteur drew the appellant's attention to the non-payment of the appeal fee and the possibility of re-establishment of rights as regards that time limit. Since a valid appeal will only be pending if the appellant's application for re-establishment of rights is allowed, that question must be considered first.
4. The application for re-establishment of rights was filed and the relevant fee paid within the prescribed two-month time limit and the facts relied on are set out (Article 122(2) and (3) EPC).
5. The application will be well-founded only if it puts forward and substantiates facts showing that the applicant and representative have exercised all due care required in the circumstances in order to comply with the time limit for payment. If the applicant or representatives has entrusted tasks he has to carry out vis-à-vis the EPO to an assistant, the former will be held liable for any mistakes on the part of the assistant unless he himself has met very specific criteria: he must have chosen the assistant carefully, properly instructed him in the tasks and exercised reasonable supervision of those tasks (cf. Decision of the Board J 05/80 dated 7 July 1981 in OJ EPO 1981, p. 343, Headnote III).
6. These conditions also apply in the case of a substitute replacing an assistant who is on holiday, ill or otherwise absent. It is a commonly experienced fact of life that assistants do have to be temporarily replaced from time to time. Where a qualified assistant is absent, therefore, the applicant or representative must either be able to call on a similarly qualified substitute or else must himself take over the work assigned to the assistant.
7. In a communication from the rapporteur, the appellant was informed of the requirements for re-establishment of rights. The appellant's submissions do not however show that these conditions were met in the case of the substitute. In the Decision referred to in paragraph 5, it was expressly pointed out that these requirements relate not only to the selection but also to the instruction and supervision of the assistant; this does not apply to all work without distinction but specifically to those tasks relating to patent. The employee must in fact have been given comprehensive instruction and must be supervised, particularly in the initial stage. It is not enough that, when entrusted with the work, the assistant appeared reliable in the light of his training and previous experience, for this is a normal condition for engaging an employee.
8. For those reasons it cannot be held that the representative and joint applicant exercised all the due care required in the circumstances within the meaning of Article 122(1) EPC. The appellant cannot therefore be granted re-establishment of rights in respect of the failure to meet the time limit for paying the appeal fee.
9. Since re-establishment of rights is thus not possible, the appeal must be deemed not to have been filed pursuant to Article 108, second sentence, EPC. In the light of its origins, Article 108, second sentence, EPC, together with the first sentence, must be interpreted as meaning that the appeal is deemed not to have been filed if the appeal fee is not paid within the time limit for appeal specified in the first sentence (see also Decision J 21/80 dated 26 February 1981, OJ EPO 1981; p. 101, mentioned in paragraph 2).
10. If an appeal is deemed not to have been filed, pursuant to Article 108, second sentence, EPC, because the appeal fee was not paid until after the expiry of the time limit for appeal, the purpose of the fee payment can no longer be achieved. The appeal fee must therefore be reimbursed, without the Board of Appeal having to give any specific order to that effect.
ORDER
For these reasons, it is decided that:
1. The application for re-establishment of rights in respect of the time limit for paying the appeal fee is refused.
2. The appeal against the Decision of the Receiving Section of the European Patent Office dated 14 May 1982 is deemed not to have been filed.