2.1. Exception for opponent – time limit for filing statement of grounds of appeal

Opponents are not entitled to request re-establishment of rights in respect of the two-month time limit for filing an appeal under Art. 108, first sentence, EPC (see T 210/89, OJ 1991, 433; see also T 323/87, OJ 1989, 343; T 128/87 date: 1988-06-03, OJ 1989, 406; T 314/01; T 2454/11; T 1946/15); nor in respect of the nine-month time limit under Art. 99(1) EPC for filing the notice of opposition and paying the appropriate fee (T 702/89, OJ 1994, 472; T 748/93; T 2254/11).

In G 1/86 (OJ 1987, 447) the Enlarged Board of Appeal held, however, that an opponent as appellant might have his rights re-established under Art. 122 EPC if he had failed to observe the time limit for filing the statement of grounds of appeal under Art. 108, third sentence, EPC (established case law, see T 335/06, T 1545/16). The reasons justifying the exclusion of opponents from re-establishment of rights in respect of the time limit for appeal – in particular the patent proprietor's interest in no longer being left uncertain as to whether an appeal had been lodged once this time limit had expired – could not be extended to the time limit for filing the statement of grounds of appeal, because this uncertainty no longer existed. The Enlarged Board applied the general legal principle recognised in the contracting states of the EPC that all parties to proceedings before a court must be accorded the same procedural rights, as a principle deriving from the general principle of equality before the law. Under this principle an opponent must not be treated differently from the patent proprietor as that would result in unjustifiable discrimination against him.

In T 181/14, the appellant (opponent), having filed notice of appeal and a statement of grounds of appeal but failed to pay the appeal fee in due time, was seeking re-establishment of its rights in respect of the time limit for payment. The board saw no reason to depart from the settled case law that Art. 122(1) EPC was applicable only where an appellant-opponent had failed to observe the time limit for filing its statement of grounds of appeal. When it came to re-establishment of rights, there was good reason to treat such a failure to file the statement of grounds of appeal differently from late payment of the appeal fee. Appellants-opponents who failed to observe the time limit for filing the statement of grounds of appeal could have their rights re-established because there was an appeal having legal effects; that is to say, appeal proceedings had been validly initiated. By contrast, if the appeal fee was not paid on time, there was no appeal. It made no difference, the board held, that, in this case, the patent proprietor had replied to the statement of grounds of appeal.