T 2406/16 (No access to account information) 21-09-2017

1. The decision under appeal was posted on 5 July 2016 and was deemed to have been delivered on 15 July 2016 (Rule 126(2) EPC). The time limit for filing the notice of appeal and for paying the appeal fee, therefore, expired on 15 September 2016 (Article 108, first and second sentence). A notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid (Article 108, second sentence). Thus, the appeal fee not having been paid until 16 November 2016, the notice of appeal of 1 September 2016 was not filed within the prescribed time limit. The non-compliance with the time limit, notwithstanding any later payment, has according to the case law of the Boards of Appeal the effect that the appeal is to be considered as not having been filed (see infra, Reasons 4). Re-establishment of rights is available in this situation (Article 122(1) EPC).

2. According to the appellant's submissions, the failure to observe the time limit for filing the statement of grounds of appeal came to light after submitting the statement of grounds of appeal when the appellant received a communication dated 2 November 2016 from the Registrar of the Board of Appeal indicating that the fee was missing. The cause of non-compliance with the time limit under Article 108, first and second sentence, EPC can therefore be considered to have been removed on that day. The two-month time limit for filing the request for re-establishment of rights in writing (Article 122(2) and Rule 136(1) EPC) was therefore observed by filing the request for re-establishment of rights on 16 November 2016. On the same day, the omitted act, i.e. the payment of the appeal fee, was performed and the fee for re-establishment was paid. Furthermore, the request for re-establishment of rights states the grounds and facts on which it is based.

Hence, the request for re-establishment of rights is admissible.

3. The appellant has, however, not shown that all due care required by the circumstances was taken to comply with the time limit for filing the appeal fee (Article 122(1) EPC).

3.1 In the case at hand, the appellant submits that the failure to comply with the missed time limit resulted from the decision to send the notice of appeal before payment of the appeal fee and the erroneous simultaneous removal of the time limit from the docketing system by an assistant, which went unnoticed by the representative.

3.2 In the case of non-observance of a time limit due to an error, the boards of appeal have established the criterion that due care is considered to have been taken if non-compliance with the time limit resulted either from exceptional circumstances or from an isolated mistake within a normally satisfactory monitoring system (Case Law of the Boards of Appeal (hereinafter "CLBA"), 8th ed., III.E.5.2., penultimate paragraph). It is the appellant's contention that the present case amounts to such an isolated mistake.

3.3 The party requesting re-establishment of rights bears the burden of making the case and proving that the requirements are met (CLBA supra, III.E.5.2., last paragraph). Thus, in the present case the appellant bears the burden of proof to show the existence of a normally satisfactory monitoring system.

3.4 The Board observes that eOLF in combination with a docketing system for monitoring the relevant time limits, when used as intended by an experienced and well trained assistant such as Ms EN under the supervision of a carefully acting representative such as Mr FC, could under most circumstances provide a satisfactory monitoring system to deal with time limits such as the one for filing a notice of appeal. However, the system described is imperfect insofar as it does not guarantee sufficient supervision under all circumstances, in particular not in cases where the usual order of processing steps is intentionally or accidentally changed or interrupted, as will be described below.

3.5 In the present case, the monitoring system was overridden before the error occurred (see 3.5.1) and the way information was exchanged between the patent department and the accounts department (see 3.5.2) made the system error-prone to begin with.

3.5.1 The normal routine of having everything necessary to file an appeal prepared by the assistant and having the representative perform a cross-check when electronically signing the notice of appeal was not followed in the case at hand. Instead the representative signed a notice of appeal containing the (then) inaccurate statement "the decision is hereby appealed and the prescribed fee paid" (italics added by the board) and left it to the assistant to pay the fee later once the CFO had informed her that there were sufficient funds in the deposit account. Whereas the normal routine made sure that the representative, who is the only one allowed to sign submissions, would certainly perform the cross-check, the deviation therefrom meant that the assistant could single-handedly make the payment and remove the time limit from the docketing system (see appellant's letter of 8 September 2017, page 2, third paragraph), so a cross-check was missing. This, however, allowed the assistant's error to remain unnoticed by the representative, who did no longer need to be involved with the matter.

3.5.2 According to the appellant's submissions, it is the patent department's task to pay fees from the company's account with the EPO by giving an order in eOLF. Yet patent attorneys and their assistants apparently do not have access to the account balance. Thus, they cannot check themselves whether there are sufficient funds to make the payment, and need to get information from the accounts department before they can issue a payment order. However, according to the Appellant's submissions, it appears to be rather difficult to get this information. It is not sufficient to contact a colleague from the accounts department because the account balance is reviewed only once or twice a week (cf. letter of 10 February 2017, paragraph bridging pages 2 and 3). Thus, even when there are sufficient funds in the account, as was the case on 1 September 2016, it might well happen, as in the present case, that members of the accounts department are not in a position to give the green light for payments because the account balance has not been checked recently enough. Since they do not normally perform checks on demand (cf. letter of 8 September 2017, paragraph bridging pages 1 and 2), the only way to get the information needed is apparently to contact the accounts department repeatedly until the point in time where the account's balance has just been checked and the department is, thus, able to provide the required information. It is evident that such a system is unreliable and prone to error.

3.5.3 Thus, changing the normal routine of checking whether the appeal fee has been paid when the notice of appeal is being sent and leaving it, instead, to the assistant to pay the appeal fee as soon as she received information from the accounts department regarding the required funds, meant intentionally deviating from a potentially satisfactory system to a system that was subject to uncertainties. These became apparent after Ms EN had erroneously removed the due date in the docketing system. Ms JS forgot to get back to Ms EN and Ms EN forgot to make further attempts to get the required information from the accounts department. Moreover, the need to deviate from the common routine only arose as a consequence of the defective information system. In a system where patent assistants have immediate access to the account balance, be it electronically or by some other reliable way of getting the latest information from the accounts department, Mr FC would not have had to deviate from the normal routine and entrust Ms EN with paying the appeal fee later, or, if he had nevertheless done so, it would not have been a problem for Ms EN to perform this task any time after having been entrusted with it.

3.5.4 Therefore, the case at hand cannot be compared with the case underlying decision T 1355/09 where an order in writing to pay the appeal fee was not carried out. In that case it was the task of the accounting department of the Appellant's parent company to effect all payments ordered by the Appellant, a small patent exploitation agency that employed only four persons. The Board found that the Appellant had no influence over the further execution of its orders, which were sent by internal post to the relevant department of its parent company and had been reliably carried out over the last years. The Board found that the risk of errors in this context was relatively low and came to the conclusion that no additional control mechanism had to be in place as had been found previously in decision T 836/09 regarding the checking of outgoing mail.

In the case at hand, on the contrary, it was the task of the patent department, i.e. the representative and his assistant, to effect the payment. Thus, the patent department had not yet done everything within its competence to file the appeal in time. Taking into account the difficulties of getting prompt information regarding the sufficiency of funds in the account (cf. sections 3.5.2. and 3.5.3 above), one can also not describe the procedure for paying fees as being low risk. Thus, the reasoning in decision T 1355/09 (reasons 1.4 - 1.7) does not apply here.

3.6 Thus, looking at the way the case was handled, the Board does not deem the monitoring system used by the Appellant to have been normally satisfactory.

3.7 Furthermore, the ultimate responsibility in observing time limits lies with the representative (see CLBA, III. E.5.5.2 e)). In the present case, he signed the letter of 1 September that contained a wrong statement regarding the payment of the appeal fee. He should have made sure that such payment had really been made. When transferring complete responsibility for this payment to his assistant - contrary to the routine procedure - he should have ensured that he performed the final cross-check himself. By jeopardising the possibility of a final cross-check, the principle of "due care" was violated.

3.8 To conclude, the omission in paying the appeal fee and the deletion from the docketing system of the time limit for paying such a fee was due to an apparently unsatisfactory monitoring system and lack of due care from the representative.

3.9 For these reasons, the request for re-establishment of rights is to be refused.

4. Although the appeal fee was paid together with the request for re-establishment on 16 November 2016 and the wording of Article 108, second sentence, would suggest that the appeal was deemed to have been filed on that day (see decisions T 2017/12 of 24 February 2014 (OJ EPO 2014, A76) and T 1553/13 of 20 February 2014 (OJ EPO 2014, A84), referring the question to the Enlarged Board), it now seems to be settled case law of the Boards of Appeal that an appeal where the appeal fee is paid after the two-month time limit of Article 108, first sentence, has expired is deemed not to have been filed.

4.1 Although neither referral led to an answer of the Enlarged Board (G 1/14), decision T 1325/15 set out why the interpretation of Article 108, second sentence, EPC as applied by the majority of earlier decisions should be maintained (reasons 34 to 37), this allegedly being in line with other EPC provisions where no distinction is made between late filing and non-filing (Reasons 40 to 41). No distinction appears to be drawn between cases where the appeal is filed in time and the appeal fee is not paid until after expiry of the time limit and cases where the fee is paid in time and the notice of appeal is filed late (Reasons 42).

4.2 Whereas case T 2017/12 was closed without a decision, the Board in case T 1553/13 issued a final decision dated 23 November 2016 going back on its earlier opinion of 20 February 2014, on the grounds that the Enlarged Board in decision R 4/15 had found that a request under Article 112a(4), third sentence was deemed not to have been filed where the respective fee had been paid after the time limit had elapsed. The Board concluded that, both provisions having essentially the same wording, Article 108, second sentence and Article 112a(4), third sentence, EPC should be interpreted in the same way.

4.3 Under these circumstances, this Board follows the decisions referred to in sections 4.1 and 4.2 above.

5. As a consequence the appeal is deemed not to have been filed, so the appeal fee has been unduly paid and is to be reimbursed.