6.1. Department competent to decide upon the request

The department competent to decide on the omitted act shall decide upon the application (R. 136(4) EPC, Art. 122(4) EPC 1973).

The boards of appeal are competent to decide on the request for re-establishment in respect of the time limit for filing a notice of appeal (Art. 108 EPC), since the department competent to decide whether the appeal was inadmissible for non-compliance with Art. 108 EPC is, under R. 101(1) EPC, the board of appeal (T 1973/09; T 808/03 of 12 February 2004 date: 2004-02-12; T 949/94 of 24 March 1995 date: 1995-03-24; T 473/91 date: 1992-04-09, OJ 1993, 630). The boards of appeal are also competent to decide on the request for re-establishment in respect of the time limit for filing the written statement setting out the grounds of appeal (T 624/96).

While this competence in relation to admissibility of an appeal is subject to the exception of Art. 109(1) EPC (interlocutory revision), this provision confers only the limited power to set aside the department's own decision if the appeal was considered admissible and well founded (T 808/03 date: 2004-02-12, T 1973/09). The admissibility of an appeal under Art. 109 EPC only falls under the jurisdiction of the department of first instance when this question can be decided immediately on the basis of the appeal submissions themselves (notice of appeal and statement of grounds, date of payment of the appeal fee). The boards of appeal have exclusive jurisdiction over a request for restitutio in respect of a time limit relating to the appeal itself (T 473/91 date: 1992-04-09, T 949/94 date: 1995-03-24, T 65/11 date: 2011-11-16).

In W 3/93 date: 1993-10-21 (OJ 1994, 931) the board held that as the board had to decide on the protest, it was also competent to examine the request for re-establishment of rights (Art. 122(4) EPC 1973).

In T 555/08 loss of rights (deemed withdrawal of the application due to non-payment of a renewal fee) occurred while appeal proceedings were pending. When appeal proceedings start, responsibility for the case passes from the department of first instance to the boards of appeal (the devolutive effect, see T 473/91 date: 1992-04-09, OJ 1993, 630). Hence in the case in point jurisdiction to decide on the request for re-establishment lay with the board hearing the pending appeal (see T 191/82 date: 1985-04-16, OJ 1985, 189; T 936/90 of 22 July 1993 date: 1993-07-22; T 708/08; T 1935/08; T 1426/14).

In T 1381/11 the board referred to T 555/08 and held that a loss of rights due to the non-payment of renewal fees automatically terminated the appeal proceedings. The issue of whether or not an appeal was pending was therefore directly linked to a request for re- establishment of rights regarding failure to pay the renewal fee made at the appeal stage. The formalities officer should therefore have acted on behalf of the board of appeal rather than the examining division, before which the case was no longer pending. The board thus took the view that it had jurisdiction to decide over the request for re-establishment of rights according to Art. 111(1), second sentence, EPC (see also T 649/13).

In T 1815/15 the appellant (patent proprietor) filed a request for re-establishment of rights with respect to the non-observation of the time limit according to R. 82(3) EPC. In line with the reasoning in G 1/90 and by making use of the discretion provided by Art. 111(1) EPC, the board stated it would decide on the request for re-establishment of rights filed while the appeal was pending.

In J 22/86 (OJ 1987, 280) the Legal Board stated in relation to the failure to pay grant and printing fees and to file translations that the examining division was in the first instance competent to decide upon such omitted act. However, in view of the special circumstances of this case, the Legal Board decided, pursuant to Art. 111(1) EPC 1973, to exercise the power of the examining division to decide upon the application for restitutio (see also J 9/86).

In T 26/88 (OJ 1991, 30) the appellant failed to comply with the request (pursuant to R. 58(5) EPC 1973) to pay the printing fee and to file translations of the claims within three months of notification of the request. The board found that the circumstances of decision J 22/86 were quite different from the case at issue and justified the exceptional exercise of the power of the examining division to decide on the application for re-establishment. In the case before the board the opposition division's formalities officer was responsible (see also T 522/88).

In J 10/93 (OJ 1997, 91) the Legal Division not only decided on the request for recording the transfer of a patent application, for which it was competent according to Art. 20(1) EPC 1973, but also dealt with the appellants' application for re-establishment of rights which it rejected as inadmissible. Since the omitted act was the applicant's failure to reply to a communication of the examining division issued pursuant to Art. 96(2) EPC 1973, the department competent to decide on the application for restitutio was the examining division (Art. 122(4) EPC 1973). The Legal Board set aside the decision finding that the Legal Division had exceeded its powers. It stated that this could not be justified by any need to decide on the request for restitutio as a preliminary issue to be answered before examining the request for registering the transfer.