CLR III E Re-establishment of rights

1.
Introduction
2.
Right to file request for re-establishment of rights
2.1.
Exception for opponent – time limit for filing statement of grounds of appeal
2.2.
Re-establishment only in cases of failure to observe a time limit for which it was for the applicant to observe
3.
Non-observance of time limit directly causing a loss of right
3.1.
The meaning of "time limit"
3.1.1
Requirement of pendency when filing divisional application is not a time limit
3.1.2
Designation of States
3.1.3
"Time limitation" condition for requests for correction
3.2.
Time limits excluded from re-establishment under Article 122(4) EPC and Rule 136(3) EPC
3.3.
Time limits concerning the PCT proceedings
3.4.
Loss of rights as a direct consequence by virtue of the EPC
4.
Admissibility of requests for re-establishment of rights
4.1.
Time limits for filing a request for re-establishment (Rule 136(1) EPC)
4.1.1
Two-month time limit from the removal of the cause of non-compliance
a)
Removal of the cause of non-compliance
b)
Responsible person
c)
Legal fiction of deemed notification
4.1.2
One-year time limit following the expiry of the unobserved time limit
4.2.
Inability to observe a time limit
4.2.1
Deliberate act missing a time limit; tactical considerations
4.2.2
Financial difficulties
4.3.
Making good the omitted act
4.4.
Substantiation of the request for re-establishment
4.5.
Number of re-establishment fees due where more than one time limit is missed
4.6.
Correction of deficiencies in the request for re-establishment
5.
Merit of request for re-establishment of rights
5.1.
Submissions to be taken into account
5.2.
General comments on due care
5.3.
Exceptional circumstances
5.3.1
Organisational restructuring
5.3.2
Change to or withdrawal of representation
5.3.3
Complex transfers of company ownership
5.3.4
Monitoring or computer systems matters
5.3.5
Sudden serious illness and severe psychological stress
5.4.
Isolated mistake within a satisfactory system for monitoring time limits or for processing mail
5.4.1
"Isolated mistake" by representative
5.4.2
A system operating efficiently for many years as evidence that it is normally satisfactory
5.4.3
Cause of mistake remains unclear
5.4.4
Requirement for a cross-check
a)
Cross-check should be independent in a large firm
b)
Control mechanisms in small firms
5.4.5
All due care in making provisions for staff absences
5.4.6
Second mistake by responsible person
5.4.7
Deficiencies in computerised systems
5.5.
Persons required to exercise due care; requirements regarding due care
5.5.1
Due care on the part of the applicant
a)
General principles
b)
Unrepresented individual applicant
c)
Choosing a sufficiently competent representative
5.5.2
Due care on the part of the professional representative
a)
Communication between professional representatives and their clients, the EPO or other representatives
b)
Payment of renewal fees
c)
Ignorance of or erroneous interpretation of a provision of the EPC
d)
Requesting and acting on information from the EPO
e)
Starting work on a case close to the expiry of the time limit
f)
Designation of receiving offices
g)
Abandonment of application
5.5.3
Due care on the part of a non-authorised representative
5.5.4
Due care in dealing with assistants
a)
Introduction
b)
Selection, instruction and supervision
c)
Technically qualified assistants
d)
Substitutes replacing assistants
e)
Ultimate responsibility of the representative
5.5.5
Due care in using mail delivery services
6.
Procedural treatment of requests for re-establishment
6.1.
Department competent to decide upon the request
6.2.
Request for re-establishment as auxiliary request
6.3.
Parties to re-establishment proceedings and the right to be heard
6.4.
Concurrent request for interruption of proceedings
6.5.
Re-establishment in the context of the President's extension of time limits during general disruption
6.6.
Redundant request for re-establishment
7.
Rights of use under Article 122(5) EPC
8.
Principle of proportionality
9.
Reimbursement of the fee for re-establishment
9.1.
Legal reason for payment of fee
9.2.
Reimbursement where request for re-establishment found to be redundant
9.3.
Request for re-establishment due to mistakes made by EPO
9.4.
Reimbursement where more than one fee for re-establishment has been paid
 

Source: http://www.epo.org/law-practice/legal-texts/html/caselaw/2019/e/clr_iii_e.htm

Date retrieved: 17 May 2021

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