J 0018/82 (Force majeure) 18-05-1983
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I. Article 122(5) EPC excludes "restitutio in integrum" not only where the time limits provided for in the specifically mentioned Articles 78(2) and 79(2) are not observed, but also where the period of grace laid down in Rule 85a, extending the normal period for payment of the filing, search and designation fees respectively, is not observed (see J 12/82 dated 11 March 1983, OJ (EPO) 6/1983, p.221) regarding the impossibility of "restitutio in integrum" where Rule 85b is not observed).
II. An argument based on the existence of "force majeure" in order to seek a re-establishment of rights can be considered only within the terms of Article 122 EPC.
Force majeure
Period of grace/non-observance of
Payment of fees/filing/search/designation
Restitutio in integrum
Summary of Facts and Submissions
I. The European patent application** in question was filed on 29 December 1981, claiming priority from a national application of 31 December 1980. According to Article 78(2) EPC, the filing and search fees - in the present case bfr 8900 and bfr 28 700 respectively - should have been paid "within one month after the filing of the application", i.e. on or before 29 January 1982. In the event of this time limit not being observed payment could still be validly made, on condition that the surcharge provided for in Rule 85a EPC was paid "within a period of grace of two months after expiry" of the previous time limit, i.e. on or before 29 March 1982. Pursuant to Article 79(2) and Rule 85a EPC, the designation fees - amounting in the present case to bfr 27 600 for six countries - should have been paid within the same time limits, the special 12-month period after the date of priority having expired earlier. On 1 March 1982 the Receiving Section drew the applicant's attention to the fact that he had not paid the fees in question before the expiry of the time limit provided for in Articles 78(2) and 79(2) EPC, but that he still had a period of grace of two months from 29 January 1982 within which to make good this omission, failing which the European patent application would be deemed to be withdrawn. In fact, on 2 March 1982, the Cash and Accounts Department recorded a payment of bfr. 35 900, which was not sufficient to cover the filing, search and designation fees and a fortiori the surcharge pursuant to Rule 85a EPC.
II. In a letter dated 26 April 1982, sent to the Receiving Section, the applicant conceded that he had made an error in calculating the amount of the fees and cited labour disputes within the applicant company as being responsible for the failure to correct the error in time. He announced that a further payment was on the way; and this in fact reached the Cash and Accounts Department on 10 May 1982.
III. In a decision dated 2 June 1982, the Receiving Section held that the fees relating to the application had not been paid within the time limits and that Rule 85(2) EPC, allowing an extension of time limits in the event of a general interruption in the delivery of mail, did not apply. The European patent application was consequently deemed to be withdrawn under Articles 78(2), 79(2), and 90(3) EPC, and the amount of fees paid would, the applicant was informed, be refunded as soon as the decision became final.
IV. In an appeal dated 11 June 1982, supported by a Statement of Grounds of 28 September 1982, the applicant duly contested the above decision, the substance of his arguments being as follows: - the Receiving Section was wrong to claim that the filing, search and designation fees had not been paid at 1 March 1982; according to the applicant, only the search fee was outstanding at that date; - the above-mentioned communication dated 1 March 1982, although arriving at destination on 10 March, was not in fact delivered to him until 5 April 1982, as a "general strike" had "brought the entire firm to a standstill" from 23 February until 5 April 1982; in its view, this constituted force majeure; - had the letter dated 1 March 1982 been sent to him sooner, and not one month after the expiry of the normal time limit, the fees could still have been paid before the strike.
V. Invited by the rapporteur on 25 January 1982 to amplify his arguments, in particular with regard to the extent of the strike cited and the possible application of Rule 85(2) EPC, which covers "a general interruption ... in the delivery of mail" on a day on which a time limit expires, the appellant, in a letter dated 18 March 1983, acknowledged that he had not been in the situation referred to in that text. However, he maintained that a strike confined to a firm during part of a time limit constituted greater force majeure than a dislocation in the delivery of mail on the day on which that time limit expired. He also invoked Article 9(1) of the Rules relating to Fees which allowed the Office to overlook "any small amounts lacking" that might be prejudicial to the rights of the person making the payment.
Reasons for the Decision
1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is, therefore, admissible.
2. The filing, search and designation fees were not paid within the time limits laid down in Articles 78(2) and 79(2), i.e. on or before 29 January 1982, as established by the Receiving Section in its communication dated 1 March 1982. At no stage did the Receiving Section take into consideration the date of 1 March, which was clearly of no relevance so far as the payment of the fees was concerned. There is therefore no need to dwell on this first argument of the appellant.
3. The primary purpose of the communication dated 1 March 1982 was to draw the appellant's attention to the fact that he still had until 29 March 1982 to pay - together with a surcharge - the fees in suit. The Receiving Section was under no obligation to issue such a communication; rather it amounted to a service rendered to the appellant, who is supposed to be familiar with the relevant provisions of the EPC. Furthermore, the communication in question could not be considered to be late since, according to the appellant himself, it reached the post office at destination on 10 March 1982, 19 days before the period of grace expired.
4. As a general rule, under Article 122(1) EPC, the applicant "who, in spite of all due care required by the circumstances having bee taken, was unable to observe a time limit vis-à-vis the EPO" may have his rights re-established upon application filed within a fixed time limit, provided that a special fee is paid. The internal strike cited by the applicant which, it is claimed, rendered access to his offices impossible for all members of his staff, including supervisory and management personnel, might a priori justify the application of such a procedure, known as "restitutio in integrum", were this possibility not expressly excluded by Article 122(5) in the case of non-payment of the filing search and designation fees.
5. This express exclusion formulated with regard to the non-payment of the above-mentioned fees within the normal time limit also applies in the event of their not being paid within the period of grace provided for in Rule 85a EPC.
6. In fact, to concede that restitutio in integrum applies to the non-observance of the period laid down in Rule 85a EPC would enable the unequivocal exclusion contained in Article 122(5) to be subverted. Such an interpretation would clearly be contrary to the intentions of the authors of the Convention.
7. Furthermore, it would in all fairness be paradoxical to appear to be more liberal towards somebody who has not been able to observe a period of grace than towards somebody who under the same conditions was unable to observe the normal time limit.
8. It is also clear that the Administrative Council of the European Patent Organisation, when adopting Rule 85a, did not intend extending to its beneficiaries the possibility of restitutio in integrum refused them within the normal periods provided for in Articles 78 and 79. This is specifically stated in the explanatory memorandum submitted to the Administrative Council on 20 October 1979 by the President of the EPO:"restitutio in integrum in respect of the extended time limit is still excluded" (CA/61/79, p. 2). This point was apparently so self-evident that it was not raised during discussions preceding the adoption of the Rule, as reflected in the Minutes of the 7th meeting of the Administrative Council of the EPO held in Munich from 26 to 30 November 1979 (CA/PV 7, points 217 to 245).
9. Moreover, the Board had to take a similar decision, excluding for identical reasons any possibility of restitutio in integrum where a request for examination had been submitted neither within the normal period stipulated in Article 94(2) nor within the period of grace under Rule 85b (J 12/82 - OJ (EPO) 6/1983, p. 221).
10. The fact that the appellant did not pay the fee for restitutio in integrum within the ruling time limit would preclude him in any case from having his rights re-established.
11. The argument based on force majeure can be considered only within the terms of Article 122 EPC. Force majeure is customarily defined as an external occurrence, neither foreseeable nor avoidable, preventing the debtor from fulfilling an obligation ("un évènement d'origine externe, imprévisible et insurmontable empêchant le débiteur d'exécuter son obligation") - cf. Guillien et Vincent, Lexique de termes juridiques, Dalloz 1982). This is precisely the situation to which Article 122 refers, though, it is true, with less severity. According to the travaux préparatoires of the EPC, what was originally Article 121, and now Article 122, cited force majeure as the sole cause of impediment allowing rights to be re-established. It was merely to satisfy a wish expressed by the interested circles that the concept was extended and Article 122 was given its present wording (cf. Minutes of the Munich Diplomatic Conference (1973), points 549 to 583).
12. Quite clearly, Rule 85(2) EPC invoked by the appellant does not apply here, as the latter concedes in his letter of 18 March 1983; the provision in question relates solely to a time limit expiring "on a day on which there is a general interruption or subsequent dislocation in the delivery of mail in a Contracting State or between a Contracting State and the European Patent Office". In the present case, it is plain from the attestation submitted by the appellant on 29 March 1982, the day on which the time limit expired, that what was involved was simply a general strike of the firm's employees from 23 February until 2 April 1982.
13. Finally, the appellant cannot seek application of Article 9(1) of the Rules relating to Fees either, for on 29 March 1982 he had paid only bfr 35 900 out of a total amount due of bfr 82 400 (filing fee bfr 8 900 + search fee bfr 28 700 + designation fees bfr 27 000 + 50% surcharge limited to bfr 17 800 pursuant to Article 2(3b.) of the Rules relating to Fees), in other words considerably less than half. Under these circumstances, he cannot seriously contend that "only a small amount" of the fees was outstanding.
14. All the provisions of the impugned decision should therefore be upheld.
ORDER
For these reasons it is decided that:
The appeal against the decision of the Receiving Section of the European Patent Office dated 2 June 1982 is dismissed.