3.3 Decision on re-establishment of rights 

The department competent to decide on the omitted act is also competent to decide on the request for re-establishment of rights. The grounds for the decision need only be stated if the request is not granted, except in opposition proceedings, as opponents are party to the re-establishment proceedings (see E‑VIII, 3.1.2).

The department which took the contested decision will have to consider re-establishment of rights in respect of an unobserved time limit for appeal when the conditions for granting interlocutory revision are fulfilled (see E‑XII, 7). It can, however, only decide to allow re-establishment if it can do so within the three-month time limit of Art. 109(2) and the conditions for re-establishment (see E‑VIII, 3.1.1 to E‑VIII, 3.1.4) are fulfilled. In all other cases, the appeal, together with the application for the re-establishment of rights, must be submitted to the competent board of appeal.

If the request is granted, the legal consequences of the failure to observe the time limit will be deemed not to have ensued. Any renewal fees which may have fallen due between the expiry of the missed time limit and the notification of the decision to grant the request for re-establishment will be due on that latter date. Valid payment will still be possible within four months of that date. If a renewal fee was already due when the loss of rights occurred but could still be paid under Rule 51(2), it may still be paid within six months of the date of notification of the decision re-establishing the rights, provided that the additional fee is also paid within that period.

If other time limits the non-observance of which would also lead to a loss of rights were already running when the loss of rights occurred, on granting the request for re-establishment the EPO will send the applicant a communication triggering those time limits anew.