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VI.E.1. EPC 2000 - synopsis of changes
In the revised EPC, the relationship between further processing and re-establishment of rights has been redefined. Further processing is now the standard legal remedy for missed time limits in the European patent grant procedure (see also chapter VI.D.2, further processing) and thus in some cases replaces re-establishment. Under Art. 122(4) EPC in conjunction with R. 136(3) EPC, re-establishment is ruled out in respect of time limits for which further processing is available under Art. 121 EPC, in particular the fee payment time limits under R. 38, 39(1), 45(2), 70(1) and (3) and 159(1)(c)-(f) EPC (see OJ SE 4/2007). Re-establishment continues to be ruled out in respect of the time limit for requesting re-establishment (Art. 122(4), R. 136(3) EPC), but is still possible for the time limit for requesting further processing (OJ SE 4/2007).
In one respect though the scope of re-establishment has also been extended. Under the new law, re-establishment of the priority period under Art. 87(1) EPC is now possible. However, in view of the central importance of the date of filing and/or priority for the valid claiming of priority, R. 136(1), second sentence, EPC lays down a time period specifically for such cases where there is an urgent need for clarity. Any request for re-establishment of the priority period must be filed within two months of the expiry of that period (OJ SE 5/2007). The same two-month period applies to the filing of the request for re-establishment in respect of the time limits under Art. 112a(4) EPC.
The requirements (Art. 122(1) EPC) and procedure (R. 136 EPC) for re-establishment and the provisions governing the right of continued use (Art. 122(5) EPC) remain unchanged (OJ SE 4/2007); but details - such as time limits, requirements to be met by the request or the competent department - have been transferred to the Implementing Regulations (R. 136 EPC). The legal effect of re-establishment is now expressly regulated by Art. 122(3) EPC. The legal consequences of failure to observe a time limit are deemed not to have ensued.