a) Removal of the cause of non-compliance 

In most cases the "cause of non-compliance with the time limit" involves some error in the carrying-out of the party's intention to comply with the time limit (J 29/86, OJ 1988, 84; regarding other possible causes of non-compliance see also in this chapter III.E.4.2. "Inability to observe a time limit").

The removal of the cause of non-compliance occurs on the date on which the person responsible for the application (the patent applicant or his professional representative) is made aware of the fact that a time limit has not been observed (see T 191/82 date: 1985-04-16, OJ 1985, 189; T 287/84, OJ 1985, 333; J 29/86, OJ 1988, 84; J 27/88, J 27/90, OJ 1993, 422).

(i) Date of the removal of the cause of non-compliance

In J 1/20 the Legal Board set out that, in its view, to correctly assess admissibility of a request for re-establishment of rights, it must first be established: (i) who was the person responsible for the application; and (ii) when this person was actually made aware of the cause of non-compliance. Removal of the cause of non-compliance is a question of fact, the answer to which thus depends on the relevant person actually becoming aware that a time limit has not been observed, e.g. actual receipt of a communication under R. 112(1) EPC, rather than on a legal fiction of awareness, e.g. deemed notification of the communication pursuant to R. 126(2) EPC. Removal occurs on the date on which the person responsible for the application/patent (normally the authorised representative) becomes aware of an error.

According to earlier decisions, the decisive factor was the time when the person concerned ought to have noticed the error if they had taken all due care (see e.g. J 27/88, J 5/94, T 315/90, T 840/94, J 24/97, J 27/01, T 1026/06, T 493/08, J 1/13, T 1588/15). In J 1/20 the Legal Board considered that this approach did not lead to a correct determination of the date of removal of the cause of non-compliance. In J 27/90 (OJ 1993, 422), the Legal Board stated that the removal of the cause of non-compliance was a matter of fact which had to be determined in the individual circumstances of each case (see also J 7/82, OJ 1982, 391; J 16/93; T 900/90; T 832/99; J 21/10; T 387/11; T 1588/15). In the case of an error of facts the removal occurred on the date on which any person responsible for a patent application should have discovered the error made. This was not necessarily the date of receipt of the communication under R. 112(1) EPC (R. 69(1) EPC 1973) (see T 315/90, J 21/10). If, however, such a communication had duly been served, it may, in the absence of circumstances to the contrary, be assumed that the removal was effected by this communication (see also J 7/82, OJ 1982, 391; J 29/86, OJ 1988, 84; T 900/90; J 27/90; J 16/93; T 428/98, OJ 2001, 494; T 832/99; J 11/03).

In T 261/07, relying on T 949/94 of 24 March 1995 date: 1995-03-24, the patentee argued that it had only become aware of an oversight once it was established that the decision of the opposition division had indeed been received. The board however took the view that the cause of non-compliance was removed as soon as the patentee noticed via a file inspection "that something was amiss" (see J 9/86, J 17/89, T 191/82 date: 1985-04-16).

In T 198/16 the board stated that the practice of applying the due-care requirement in the context of removal of the cause of non-compliance with a period within the meaning of R. 136(1) EPC could well be seen as extending the meaning of the due-care requirement in a way that enlarges the scope of the essentially substantive criterion by adding to it the function of an extraordinary preliminary admissibility/applicability hurdle. The board stated that this approach to the "removal" criterion, which could not be based on the letter of the law, was therefore doubtful. The board left open the question as to the approach to be followed.

(ii) Presumption as to date of the removal of the cause of non-compliance

If a loss-of-rights communication (R. 112(1) EPC) is served there is: (i) a presumption that removal occurs on the date of receipt of such communication; and (ii) an obligation for the recipient not to ignore it, and to take action. This presumption is, however, rebuttable, in the sense that it is valid unless, due to exceptional circumstances, the cause for non-compliance persisted (J 1/20, T 1588/15). In J 29/86 (OJ 1988, 84) the Legal Board assumed a later date in view of the special circumstances of the case. In T 900/90 the board emphasised that in all cases in which the receipt of the notification under R. 69(1) EPC 1973 (R. 112(1) EPC) could be regarded as the removal of the cause of non-compliance it had to be clearly established that neither the representative nor the applicant was aware that the application had been deemed to be withdrawn before the receipt of that notification. Other cases in which the boards agreed to a date different from that of the receipt of the communication under R. 69(1) EPC 1973 (R. 112(1) EPC) include J 16/93, J 22/97, J 7/99, J 19/04, T 24/04 and T 170/04.

In T 1570/20, the cause of non-compliance was removed on the date the European professional representative became aware of the loss of rights, i.e. upon receipt of the loss-of-rights communication. Removal of the cause of non-compliance did not require any additional knowledge by the professional representative about possible reasons for the loss of rights, such as whether the non-payment of fees was intentional or not. Rather, it was sufficient that the professional representative became aware of the fact that a time limit, with regard to which re-establishment of rights was requested later on, had not been complied with, which included awareness of the fact that nobody had taken care of the payment of fees.

In J 7/16 the Legal Board held that the relevant cause of non-compliance with the two-month time limit of R. 136(1) EPC lay in the fact that the former representative was not in a position to act properly in the proceedings due to his state of health. Thus, the date of removal of the cause of non-compliance could only be the date on which the applicant had inspected the file and realised that its former representative had not acted properly.

In T 1547/20, the start of the two-month time limit was the appellant's receipt of a communication from the registry. The board received the request for re-establishment two months and ten days after the registry's communication was sent out. The appellant had submitted that it had filed the request for re-establishment within the time limit stipulated by R. 136(1) EPC but there was no evidence as to the date of receipt of the communication. In the absence of proof that the actual date of receipt of the communication was within nine days after it was sent out, the board was satisfied that the request for re-establishment was submitted in time.

(iii) Time limit not observed due to an error of law

In T 493/08 the board considered that, where a time limit was not observed due to an error of law, the removal of the cause of non-compliance with that time limit occurs on the date on which the applicant actually became aware of the error of law (see also J 1/20). The board noted that, in an apparent contrast to this view, in T 1026/06 the date when the applicant should have made investigations was considered to be critical, even though the applicant apparently failed to undertake such investigations as a consequence of what was considered to be an error of law.