E. Re-establishment of rights

No conclusive case has been submitted with the request for re-establishment of rights that explains why an attempt was (erroneously) made to pay the appeal fee using a form that was no longer accepted at the EPO. Article 122 EPC and the relevant case law does not excuse mistakes by the representative himself or herself that are caused by the ignorance of the latest provisions even if the representative does not normally perform the duty of paying fees himself or herself. As he or she is the one that is expected to instruct and supervise his or her staff, he or she must always keep informed of the latest developments on how to handle the payment of fees. As he or she is expected to remember what he or she has learned even in stressful situations it cannot be acknowledged that the mistake has happened despite all due care having been taken. The situation (stress caused by an upcoming snow storm) cannot be equated with one where a patent attorney was incapable of taking sound decisions due to sudden serious illness or a sudden and unexpected bereavement.

If the European Patent Office issues a promise or statement on how to act in a given area, the principle of legitimate expectations requires that promise or statement to be honoured unless there is good reason not to do so. Users and representatives cannot be expected to question, without any apparent reason, statements on the extension of time limits which are made in publications under Rule 134(4) EPC. Even in the absence of a general dislocation in the delivery or transmission of mail, they can rely on such publications without suffering any disadvantages (points 1.12.-1.20 of the Reasons).

The established approach of applying the due-care criterion to the question of removal of the cause of noncompliance under Rule 136 EPC leads to an additional admissibility requirement, by expanding the scope of the substantive due-care criterion, which has no basis in the EPC. Removal of the cause of non-compliance is a question of fact which occurs on the date on which the person responsible for the application or patent actually became aware of an error (actual knowledge), rather than when this person ought to have noticed the error (presumption of knowledge). Pursuant to Article 122(1) EPC, if failure to observe a time limit is due to an error of fact, the due-care criterion is to be assessed only in the context of the merits of a request for re-establishment of rights. The same applies if failure to observe a time limit is based on an error of law. Thus, the due-care criterion is to be assessed only in the context of the merits of the request and removal of the cause of non-compliance occurs when the responsible person actually became aware of the error of law.