W 0003/93 (Re-establishment of rights) of 21.10.1993

European Case Law Identifier: ECLI:EP:BA:1993:W000393.19931021
Date of decision: 21 October 1993
Case number: W 0003/93
Application number: -
IPC class: C07D 311/72
Language of proceedings: DE
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Versions: OJ
Title of application: -
Applicant name: -
Opponent name: -
Board: 3.3.01
Headnote: 1. By analogy with the principles developed by the Enlarged Board of Appeal in decision G 1/83 (OJ EPO 1985, 60, points 5 and 6 of the reasons) for interpreting the EPC, Article 48(2) PCT should be construed to mean that in the event of a delay in meeting the time limit laid down in Rule 40.3 PCT the same legal remedies are available as in the case of failure to observe other comparable time limits under the PCT or EPC (point 1.1 of the reasons) (see also W 4/87, OJ EPO 1988, 425, point 7 of the reasons).
2. Re-establishment of rights restores the legal situation to that existing prior to the decision which declared the protest inadmissible, i.e. it destroys the legal validity of the decision, which accordingly need not be set aside or amended (point 2.4 of the reasons).
3. The purpose of the protest procedure under Rule 40.2 PCT is to enable the justification for the invitation to pay to be submitted to substantive review; the only issue to be examined therefore is whether, considering the reasons given by the International Searching Authority (ISA) and the submissions made in support of the protest, retaining additional search fees was justified. The Board cannot therefore investigate ex officio whether an objection of lack of unity would have been justified for reasons other than those given (point 4 of the reasons).
Relevant legal provisions:
European Patent Convention 1973 Art 122
Patent Cooperation Treaty Art 17(3)(a)
Patent Cooperation Treaty Art 48(2)
Patent Cooperation Treaty R 40(2)
Patent Cooperation Treaty R 82a
Keywords: Re-establishment of rights after the Board of Appeal has finally rejected a protest under Rule 40.2(c) PCT on the grounds that it was out of time (yes)
Protest admissible
Lack of unity a priori (no)


Cited decisions:
Citing decisions:
G 0001/97
J 0024/99
W 0004/93
W 0008/93
W 0004/94
W 0011/94
W 0002/97
W 0006/97
W 0006/98
W 0008/01
W 0018/01
W 0020/01
W 0004/02
W 0014/02
W 0016/03
W 0017/03
W 0026/03
W 0001/04
W 0019/04
W 0037/04
W 0002/05
W 0006/05
W 0021/05
W 0005/06
W 0023/06
W 0001/07
W 0006/07
W 0009/07
W 0016/08
W 0020/08

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PCT Articles

PCT Implementing Rules

Case Law Book: III Amendments

Case Law of the Enlarged Board

General Case Law