4.2. Inability to observe a time limit

Abstract

In T 178/23 the appellant requested re-establishment of rights under Art. 122 EPC in relation to the non-observance of the time limits under Art. 108 EPC for filing the notice of appeal and paying the appeal fee, and for filing the statement of grounds of appeal.

As regards the admissibility of the request for re-establishment of rights, the board observed that, since the appellant had missed two different time limits, it could be argued that each of the two time limits, which expired independently of one another, had to be considered separately, notwithstanding the fact that they were triggered by the same event (see J 26/95, T 2017/12). In this case, the appellant's request for re-establishment would be inadmissible because it paid only one re-establishment fee within the two-month time limit under R. 136(1) EPC. However, there was also case law in which one fee was considered sufficient because re-establishment in respect of both periods had to be examined together and the result would inevitably be the same (see T 315/87, J 7/16, T 1823/16). In the board's view, the question of whether one or two re-establishment fees were required could be left undecided in the case in hand.

Regarding the substantiation of the request for re-establishment of rights, the board found that in the letter requesting re-establishment of rights, the appellant had not presented any core facts to make it possible for the board to consider whether the appellant had taken all due care required by the circumstances in order to comply with the time limits under Art. 108 EPC. Rather, the appellant had merely stated that it had failed to observe the time limits despite exercising all due care, without setting out any concrete facts demonstrating that it had taken all the due care required by the circumstances. The mere statement that it "could not be reasonably expected" that the drawings would be missing in the examining division's communication under R. 71(3) EPC was not sufficient in this regard. It was only with the letter of reply to the board's communication that the appellant went into more detail for the first time on possible facts regarding whether the appellant had taken all due care required by the circumstances. According to the board, the appellant had not merely adduced further evidence clarifying the facts which had already been set out in due time, but had (belatedly) attempted to make a conclusive case. Therefore, the new submissions in the letter of reply were not to be taken into account. Consequently, the request for re-establishment of rights was found inadmissible for lack of substantiation.

The board then moved on to the issue of inability to observe a time limit vis-à-vis the EPO. It noted that according to established case law the word "unable" in Art. 122(1) EPC implied an objective fact or obstacle preventing the required action, e.g. a wrong date inadvertently being entered into a monitoring system.

In the case in hand, the board could not see any objective fact or obstacle that prevented the appellant from observing the time limits under Art. 108 EPC. The facts relied on by the appellant did not relate to an error in the carrying out of a party's actual intention to meet a specific time limit, but only to an error in relation to the intention to use a legal remedy entailing a time limit. The appellant was able to file an appeal in due time but failed to do so because of a previous error as to motive, i.e. because it was unaware of the need to file an appeal to rectify the absence of the drawings in the patent specification. According to the board, this situation differed from those governed by Art. 122 EPC where a party did intend to observe a time limit but failed to do so due to objective obstacles.

Consequently, the board found that the appellant's request for re-establishment of rights was also inadmissible on the ground that the appellant was not unable to observe the time limits under Art. 108 EPC. In view of the considerations above, whether the appellant had complied with the "all due care" criterion under Art. 122(1) EPC was irrelevant. The request for re-establishment of rights was thus refused as inadmissible and the appeal was deemed not to have been filed.