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Case Law of the Boards of Appeal

 
 
Table of Contents - Case Law of the Boards of Appeal
VI. Rules common to all proceedings before the EPO
E. Re-establishment of rights
2. Applicability of re-establishment of rights (Article 122(1) EPC)
2.2. Loss of rights as a direct consequence by virtue of the EPC
2.2. Loss of rights as a direct consequence by virtue of the EPC
Under Art. 122(1) EPC rights could not be re-established unless they had previously been lost as a direct consequence of the non-observance of a time limit vis-à-vis the EPO.
In J 1/80 (OJ 1980, 289) certified copies of priority documents had not been filed within the 16-month period provided for in R. 38(3) EPC 1973. The Legal Board of Appeal found that, according to the Convention, there was a deficiency only if the priority documents had not been filed by the end of the period. It could only be said that there was a deficiency thereafter and the applicant should have been given an opportunity to remedy that deficiency within a further period (Art. 91(2), R. 41(1), 84 EPC 1973). The board recognised that there could only be a loss of rights if the applicant did not then take advantage of this opportunity.