3.1.3 Form of the request and applicable time limit 

As a rule, the request for re-establishment of rights must be filed in writing within two months from the removal of the cause of non-compliance with the time limit, but at the latest within one year of expiry of the unobserved time limit. The omitted act must be completed within this period.

Where the "cause of non-compliance with the time limit" involved some error in the carrying out of the party's intention to comply with the time limit, the removal of the cause of non-compliance occurs on the date on which the person responsible for the application is made aware of the fact that a time limit has not been observed or ought to have noticed the error if all due care had been taken. The removal of the cause of non-compliance is a matter of fact which has to be determined in the circumstances of each individual case. In the absence of circumstances to the contrary, where a communication under Rule 112(1) has been duly sent, it may be assumed that the removal was effected by receipt of this communication (see J 27/90).

Unlike the time limit for other cases as described above, a request for re-establishment in respect of the priority period (Art. 87(1)) or the period for filing a petition for review by the Enlarged Board of Appeal (Art. 112a(4)) must be filed within two months of expiry of the relevant period.

A request for re-establishment is not deemed to be filed until after the fee for the re-establishment of rights has been paid.

The principles regarding unitary and independent procedural acts described in E‑VIII, 2 apply mutatis mutandis to establishing the number of requests for re-establishment of rights, in particular for establishing the relevant fees to be paid. Where one unitary procedural act is omitted by not performing one or more actions forming that act, only one fee for re-establishment is due. Where several independent procedural acts are omitted, each resulting in the application being deemed withdrawn, a fee for re-establishment is due for each omitted act.

These principles also apply to cases where re-establishment of rights must be requested in respect of the time limit(s) for requesting further processing (see Rule 136(3)). In such cases, the number of unobserved time limits, each resulting in the application being deemed withdrawn and requiring a request for further processing, determines the number of requests for re-establishment and the corresponding number of fees for re-establishment.

Example 1

An international application comprises more than 35 pages and was published in a language other than an official language of the EPO. The acts required for entry into the European phase upon expiry of the 31-month period under Rule 159(1) were omitted. Due to their different legal nature, the individual acts required under Rule 159(1) do not form a unitary procedural step but are legally independent and subject to independent time limits. The table below provides a schematic illustration regarding further processing and re-establishment of rights (for information on the remedies available for non-observance of the time limits under Rule 159(1), see the individual sections under E‑IX, 2).

Box I of the table lists the number of independent unobserved time limits. Box II indicates the fee for further processing corresponding to each unobserved time limit. Box III provides the fee for re-establishment corresponding to each unobserved time limit.

In the example, for a request for further processing to be allowed, completion of the omitted acts (i.e. all acts that were to be performed within the 31-month period) and payment of five fees for further processing (two of which comprise two fees) are required within the two-month period under Rule 135(1). If that period is missed, the applicant may request re-establishment of rights in respect of the period. The request requires completion of the omitted acts and payment of the corresponding number of fees for re-establishment of rights within the period under Rule 136(1). The omitted acts are those that were to be performed within the 31-month period and payment of the corresponding five fees for further processing. Payment of five fees for re-establishment of rights corresponds to the number of five independent fees for further processing.

Example 2

The applicant missed the time limit for requesting further processing in respect of the time limit for replying to a communication from the examining division under Art. 94(3) as well as the time limit to pay the renewal fee with the additional fee. As these time limits expire independently of one another and both have been missed by the applicant, each resulting in the application being deemed withdrawn, a request for re-establishment has to be filed in respect of each unobserved time limit (J 26/95). In such cases, a fee for re-establishment has to be paid in respect of each request. In the case of independent time limits, in particular where they expire on different dates, the reasons for missing them and the date of removal of the cause of non-compliance may be different.

Example 3

After a decision to refuse by the examining division, the applicant missed both the time limit for filing the notice and the time limit for filing the statement of grounds of appeal. Both time limits were missed for the same reason. Despite two time limits being missed, only one re-establishment fee has to be paid as both periods were triggered by the same event, i.e. the notification of the decision, and both time limits were missed on the same grounds. In such a case, re-establishment in respect of both periods has to be examined together and, as the result would inevitably be the same in both cases, one re-establishment fee is considered to be sufficient.

If the time limits for filing the notice and the grounds were missed for different reasons, there would be no causal connection and two fees for re-establishment would have to be paid.