5.5. Persons required to exercise due care; requirements regarding due care
Overview
5.5. Persons required to exercise due care; requirements regarding due care
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Primarily it is up to the applicant (patent proprietor) to show due care. The applicant has to accept the actions of his representative, including the actions of the attorney's assistants and employees, on his behalf (J 5/13 with reference to J 5/80, OJ 1981, 343; J 1/07). The "due-care" obligation is assessed differently, depending on whether an applicant, his representative or an assistant is involved.
- T 600/18
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.