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For re-establishment of rights to be possible, there must be a failure to meet a time limit vis-à-vis the EPO (Art. 122(1) EPC), i.e. a time limit given specifically to the applicant pursuant to the Convention or by an official of the EPO within which he must accomplish a certain act (i.e. according to R. 59 EPC).
In J 3/83 the board explained that the concept of a time limit within Art. 122 EPC 1973 involved a period of time of a certain duration. In the case of designation of states, there was no such period. States had to be designated at a particular time, see Art. 79(1) EPC 1973. With the EPC 2000 this is no longer an issue, as under the new Art. 79(1) EPC all contracting states party to the EPC at the time when the application is filed are deemed to be designated in the request for grant of a European patent.
In J 7/90 (OJ 1993, 133) the board found that the "time limitation" condition imposed under board of appeal case law, which required that, in general, a request for correction of the designation of a state or priority data had to be refused in the public interest if it was not made early enough to enable publication of a warning together with the European patent application, was not a "time limit" within the meaning of Art. 122(1) EPC 1973.
In J 21/96 the board held that the time restriction for filing a divisional application (R. 25(1) EPC 1973) was not a time limit within the meaning of Art. 122(1) EPC 1973. It merely identified a point in the grant procedure after which a divisional application could no longer be filed. This point was decided upon by the applicant when he gave his approval pursuant to R. 51(4) EPC 1973. Therefore, in the absence of a time limit to be observed, re-establishment of rights was not possible (see also J 4/02).
The Legal Board of Appeal adhered to this conclusion even after R. 25(1) EPC 1973 had been amended in 2001. In J 10/01 the board emphasised that not every "time limit", "time limitation" or "time restriction" under the EPC 1973 was also a time limit pursuant to Art. 122 EPC 1973. According to J 21/96, R. 25(1) EPC 1973 did not lay down a time limit within the meaning of Art. 122 EPC 1973 but merely identified a point in the grant procedure after which a divisional application could no longer be filed. This decision could be applied to the case in suit as well, as only the defined point in time had been changed, from the time of approval of the text according to R. 51(4) EPC 1973 to the moment when the earlier application was no longer pending.
On the same subject the board emphasised in J 24/03 (OJ 2004, 544) with reference to J 3/83 and the principles of procedural law generally recognised in the contracting states, that a time limit involves a period of fixed length for accomplishing a procedural act. It held that, in procedural law, the fact that a conditional act can only be accomplished before a particular set of circumstances foreseen by legal provisions occurs (condition), was conceptually different from a set period of time imposed for doing an act (time limit). The board concluded that R. 25(1) EPC 1973 did not impose any time limit but rather sets a condition, namely that the earlier European patent application was pending. The communication of the day of publication to the applicant could not be regarded as an implicit imposition of a time limit (see also J 3/04).
Time limits in the EPC have two conceptual elements: (1) a period of time determined in years, months or days, and (2) a relevant date, which serves as the starting date of the time limit, and from which the period of time is counted. Time restrictions imposed on applicants by the EPC, but not having these conceptual elements cannot be regarded as time limits for the purposes of Art. 122 EPC 1973 (J 18/04, OJ 2006, 560).