3.2.3 Excusing of delays in meeting time limits (Art. 48 PCT, R. 82bis PCT)

Art. 48(2)(a) PCT requires a contracting state to excuse, for reasons admitted under its national law, any delay in meeting any time limit. R. 82bis.2 PCT specifies that the provisions of the national law referred to in Art. 48(2) PCT are those provisions which provide for reinstatement of rights, restoration, restitutio in integrum or further processing in spite of non-compliance with a time limit, and any other provision providing for the extension of time limits or for excusing delays in meeting time limits.

It thus follows from Art. 48(2)(a) PCT and R. 82bis.2 PCT that a Euro-PCT applicant who has not performed a certain procedural act within the time limit prescribed in the PCT can take advantage of the relevant provisions of the EPC on re-establishment of rights in all cases where "direct" European applicants may invoke them if they fail to observe the applicable time limit. For this reason, the provisions of Art. 122 EPC, which relate to the possibility of re-establishment of rights where a time limit has not been respected, should apply to Euro-PCT applicants to the same extent as they apply to direct European applicants (see decisions G 3/91, OJ EPO 1993, 8, point 1.4 of the Reasons, and G 5/93, OJ EPO 1994, 447, point 1.1.3 of the Reasons).

As illustrated in J 13/16, re-establishment of rights under Art. 122 EPC is ruled out in proceedings before the EPO in respect of the period under R. 49ter.2(b)(i) PCT for filing a request for restoration of a right of priority. The period for filing a request under Art. 122 EPC and R. 136 EPC for re-establishment of rights in respect of the priority period under Art. 87(1) EPC is directly comparable to the period for filing a request for restoration of the right of priority under R. 49ter.2 PCT, even if they differ in terms of duration. This means that, because re-establishment of rights is excluded under Art. 122(4) and R. 136(3) EPC for direct European applicants in the event of failure to observe the period for filing a request for re-establishment in respect of the priority period under R. 136(1), second sentence, EPC, Art. 48(2)(a) PCT does not oblige the EPO to give Euro-PCT applicants the possibility of re-establishing rights in respect of the period for filing a request for restoration of the right of priority under R. 49ter.2 PCT. See also J 1/08, J 8/18 and J 1/19.