If the request for re-establishment is deficient, the principle of legitimate expectation may oblige the EPO to draw attention to the deficiency if it is readily identifiable by the EPO and the party can still correct it within the time limit under R. 136(1) EPC, Art. 122(2) EPC 1973 (see Chapter III.A.3, Obligation to draw attention to easily remediable deficiencies; see e.g. T 14/89, OJ 1990, 432; J 13/90, OJ 1994, 456; J 2/94; T 585/08). If a warning can be expected but is not issued to the applicant within the relevant time limit, the EPO must set a period within which the applicant can correct the deficiency and perform the procedural act in due time (J 13/90, OJ 1994, 456). However, this obligation to set a new time limit does not apply to absolute time limits (such as the one year time limit under R. 136(1) EPC, Art. 122(2), third sentence, EPC 1973), which by definition are non-extendable (J 34/92).
Date retrieved: 24 November 2017