5.5.3 Due care on the part of a non-authorised representative

In determining whether all due care has been taken, the acts of all those persons the appellant has asked to act on its behalf must be considered, which also applies to non-authorised representatives instructed by the appellant (T 2274/11 with reference to J 4/07; see also J 5/80).

In J 25/96 the Legal Board held that where a US applicant availed himself of the services of a US patent attorney for matters which in relation to the EPO fell within the applicant's responsibility, the US patent attorney had to be regarded as the agent of the applicant. Thus, to meet the "all due care" requirement, the US patent attorney had to show he had taken the due care required of an applicant (see also J 3/88, T 1401/05 of 20 September 2006 date: 2006-09-20).

In J 4/07 the Legal Board pointed out that a non-European representative can be held responsible for meeting the obligations of any representative whose duty it is to care for his client's interests, irrespective of whether such representative is entitled to represent before the EPO or any other patent office (see J 25/96, J 5/18). The monitoring of specific time limits that were set expressly does not depend on knowledge of EPC law. Thus a non-European representative must also establish a reliable monitoring system for such time limits. Furthermore, any representative, whether European or non-European, moving from one law firm to another must take provisions upon entry in that firm that those filed that he carries over are integrated into a time limit monitoring system.

In J 3/08 the Legal Board held that according to the established jurisprudence, if an agent was appointed, the agent had also to observe all due care and if he did not act accordingly this was imputed to the applicant. In the case at issue, it was clear that the agent, by not acting as instructed, had not properly handled the case. According to the Legal Board, if fraud by an agent were to be accepted as a reason for re-establishment of rights, by derogation from the general principle that an agent's behaviour was imputed to the applicant, the evidence presented must be so conclusive as to convince the board that a fraud took place as opposed to just unprofessional behaviour.

In T 742/11 the board held that the actions of an agent, who acted as an intermediary between the appellant and the professional representative, must be imputed to the party he is acting for, and the same level of care is expected from the agent as from a professional representative, or at least as from the party itself. Indeed, requiring a certain level of care from a professional representative and a party using his services would become utterly pointless if an intermediary acting between the party and the professional representative were not required to show the same level of care.

In T 1954/13 after the applicant (appellant) issued the US attorney with an order to "stop work", communication between the appellant and the US attorney was "reduced to a minimum". In the absence of evidence that the appellant had explicitly instructed the US attorney not to pass on any information about the status of the application to the appellant, the board could not establish that, by remaining inactive with respect to the application in suit, albeit having received relevant information from the European representative, the US attorney had complied with the requirement of "all due care". Although the appellant asserted an email had been sent by the US attorney to inform the applicant about the final deadline for filing an appeal shortly before the date both the US attorney and European representative considered to be the last date for filing an appeal, the mere sending of a single e-mail to the applicant without seeking confirmation of receipt or a follow-up enquiry, did not, in the board's view, meet the standard of all due care required by the circumstances (see also T 2274/11, J 15/14, J 19/04).