It is incumbent upon the representative to choose for the work a suitable person, properly instructed in the tasks to be performed, and to exercise reasonable supervision over the work (J 5/80, OJ 1981, 343; J 16/82, OJ 1983, 262; J 26/92; T 2016/16). An "assistant" within the meaning of J 5/80 (OJ EPO 1981, 343) includes a substitute replacing an assistant who is on leave, ill or absent for some other reason. The same standard of care must be exercised as regards the choice, instruction and supervision of the substitute as of the assistant himself (J 16/82, OJ 1983, 262). New assistants must be supervised on a regular basis for a period of at least some months (see J 3/88, T 715/91).

The case law cited above applies equally to a patent attorney residing in the USA (or his assistants) if he acts in collaboration with the duly appointed professional representative. In J 3/88 the US patent attorney of a "non-resident" applicant acted in collaboration with the duly appointed professional representative. The "docket clerks" (assistants of the US patent attorney) were entrusted with the performance of routine tasks such as noting time limits and checking due dates. The Legal Board stated that in order to be able to carry out these admittedly rather simple tasks properly, they needed nevertheless some basic knowledge. The Legal Board concluded that, although no special qualifications were required, it was fairly impossible for a docket clerk to perform these routine tasks satisfactorily without having previously been given appropriate instruction and being supervised closely until he was familiar with the job. A reasonable supervision of the activity of a newly engaged docket clerk implied that his work be periodically checked. In order to be effective and avoid culpable errors, these periodic checks should be performed systematically, at least during an initial training period of several months.

(i) Routine tasks

In T 1062/96 of 11 December 1997 date: 1997-12-11 the board found that the posting of a letter prepared and signed by the representative was a typical routine task which the representative could entrust to an assistant (see also T 335/06). In the case in question the assistant was expressly instructed to send the letter by fax on the same day. In a properly organised office the representative could rely on the correct execution of such an instruction. The sending of the fax did not require any specialised knowledge or qualification. Therefore, the assistant, here a secretary, who had proven to be reliable in the daily work of the representative's office, could have been expected to do this job within her own responsibility. Since the order was to be carried out more or less immediately, a later check whether the fax had actually been despatched was not necessary. See also T 2023/14.

In T 2253/13 the representative tasked an assistant with sending the statement of grounds of appeal to the EPO by fax on the final date of the relevant time limit, however the assistant overlooked that the fax transmission had not been successful. The board was satisfied that the appellant was unable to observe a time limit in spite of all due care. The representative was entitled to transfer such a routine task to an assistant without infringing all due care in dealing with the filing of the grounds of appeal, and there had been an excusable isolated mistake by the assistant.

In T 2450/16 the board held that, at least in the case in hand, the preparation of a notice of appeal by the representative's assistant could not be considered to constitute a routine task that could rightfully be entrusted to her by the representative.

(ii) Choosing a suitable person for the task

In T 191/82 date: 1985-04-16 (OJ 1985, 189) the non-payment in due time of an additional fee was found to be clearly attributable to an unfortunate concatenation of errors by nevertheless properly selected and experienced employees.

In J 12/84 (OJ 1985, 108) the due care required in the circumstances was not observed when the employees of another company were instructed to sign for registered mail addressed to the representative, as he was not able to supervise the work of such persons not employed by his firm.

In T 309/88 of 28 February 1990 date: 1990-02-28 the board stated that even employees without formal training as patent attorney's assistants could perform the task of recording and monitoring time limits. This was routine work which did not require specialised knowledge and professional qualifications. However, the assistant had to be properly instructed in the tasks to be performed and a trained employee had to be on hand to give advice.

(iii) Properly instructing the assistant

In T 1764/08 the board held that filing an admissible appeal was not a routine task, but rather a complicated task which needed clear instructions from the professional representative to his assistant.

In T 2336/10 the board held that the representative did not appear to have issued proper instructions as regards the correct way to deal with the time limit for filing a statement of grounds of appeal. An assistant to whom that task was entrusted had to be instructed to work on the assumption that, once the notice of appeal had been filed and the appeal fee paid, a statement of grounds of appeal would in principle have to be filed within the four-month time limit laid down in Art. 108 EPC.

In T 198/16 the board held that a representative must give express and clear instructions to an assistant to the effect that the appeal fee had to be paid. It was not enough to rely on the assistant's deducing the duty to file the payment form from the notice of appeal.

In T 2450/16 the board noted that epoline^® mainly dealt with the electronic filing of documents with the EPO. In the board's understanding, it was not an electronic guide supposed to convey knowledge about the right document(s) to file in a given situation. Rather the use of epoline^® presupposed such knowledge. In other words, the assistant's use of epoline^® could by no means replace the need for proper instructions from the representative.

(iv) Reasonable supervision

In T 949/94 of 24 March 1995 date: 1995-03-24 the board stated that a representative was expected to exercise reasonable supervision over the work delegated. This did not mean that he had to supervise the posting of every letter. Once he had signed a letter and ordered his secretary to post it, he was entitled to assume that it had been posted. In the light of that, the board was satisfied that the representative had exercised due care in dealing with his secretary (J 31/90, T 1171/13).

In T 1465/07 the secretary of the representative had previously worked for another partner and after her taking up her new job the instructions given in relation to the backup check consisted of little more than the order to continue to perform that check in the same way as she had done in her former position. The board considered that this was insufficient and that she required supervision at shorter intervals during the period immediately following her taking up the new job. Requiring such supervision was not only appropriate and necessary but also not disproportionate, as supervision does not require a substantial amount of time.

In T 1149/11 the board held that the duty of care concerning supervision of the assistant required that an effective cross-check was implemented, at least in a firm where a large number of time limits have to be monitored. This was particularly so in the case at issue because the time limit for filing a notice of appeal and paying the appeal fee pursuant to Art. 108 EPC was absolutely critical; if the time limit was missed, there was no further ordinary remedy and the contested decision had legal effect (see also T 439/06, OJ 2007, 491).

In T 555/08 the board found that the requisite standard of due care was not met by uncritically accepting the accuracy of an assistant's oral statements although they must have been open to doubt (see T 602/94). Failure to query or check such statements had to be viewed in the context of the obligation to supervise assistants. Especially where there were signs that mistakes might have been made, it was essential to check whether assistants were correctly performing the duties assigned to them.

In T 2016/16 the board observed that the representative was not discharged from his or her duty to properly instruct and supervise the assistant, even if the time limits entered by the assistant in the docketing system were normally double-checked by a patent attorney.