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Under Art. 122(1) EPC re-establishment of rights may be granted to both the applicant and the proprietor of a European patent. In principle it is a legal remedy that is not available to opponents, even after the EPC revision.
In G 1/86 (OJ 1987, 447) the Enlarged Board of Appeal admitted an exception to this principle in the following case: an opponent as appellant may have his rights re-established under Art. 122 EPC if he has failed to observe the time limit for filing the statement of grounds of appeal (established case law, see i.e. T 335/06). The board first of all observed that in drafting Art. 122 EPC 1973, the authors of the Convention intended only to exclude certain cases and time limits from restitutio in integrum, and not to restrict that facility solely to applicants and patent proprietors. The wording of Art. 122(1) EPC 1973 (Art. 122 EPC remaining unchanged in that respect), the historical documentation relating to the EPC 1973 and a comparison of the national laws of member states suggested that opponents may not have their rights re-established in respect of the time limit for appeal. However, this did not answer the question raised with regard to the time limit within which the opponent has to file the statement of grounds for appeal because, when its authors decided to exclude opponents from restitutio in integrum, the draft EPC 1973 made no provision for a separate time limit for filing the statement of grounds of appeal, and consequently they did not rule on the matter.
The Enlarged Board considered that the reasons justifying the exclusion of opponents from re-establishment of rights in respect of the time limit for appeal - in particular the patent proprietor's interest in no longer being left uncertain as to whether an appeal had been lodged once this time limit had expired - could not be extended to the time limit for filing the statement of grounds of appeal, because this uncertainty no longer existed. Once the appeal had been filed, the legal process had begun and the patent proprietor had to comply with the procedural requirements like all the other parties and wait until the board of appeal arrived at a final decision on the appeal's admissibility.
On this basis the Enlarged Board applied the general legal principle recognised in the contracting states of the EPC that all parties to proceedings before a court must be accorded the same procedural rights, as a principle deriving from the general principle of equality before the law. Under this principle an opponent must not be treated differently from the patent proprietor as that would result in unjustifiable discrimination against him.
In T 210/89 (OJ 1991, 433) the board ruled that an opponent (appellant) was not entitled to have his rights re-established when he missed the two-month time limit for filing an appeal (Art. 108, first sentence, EPC 1973). An opponent (appellant) seeking to have his rights re-established could not rely on the principle of "equality before the law" (applying Art. 125 EPC 1973) where the appeal did not exist for procedural reasons (distinguishing G 1/86, see above). The applicant or proprietor, having failed to set in motion his appeal, would find himself at the end of the legal road; by contrast, an opponent could, if he wished, seek revocation in the national courts into whose jurisdiction the European patent would have passed (see also T 323/87, OJ 1989, 343; T 128/87, OJ 1989, 406 and T 314/01).
Referring to G 1/86 the board stated in T 702/89 (OJ 1994, 472) that a request for re-establishment of rights by an opponent who had failed to observe the nine-month time limit under Art. 99(1) EPC 1973 for filing the notice of opposition and paying the appropriate fee had to be rejected as inadmissible. In G 1/86 the Enlarged Board of Appeal held that in appeal proceedings the legal process started when the appeal had been filed and the appropriate fee had been paid. For the same reasons, the board in T 748/93 maintained that, in accordance with Art. 99(1) EPC 1973, the legal process in opposition proceedings began when the notice of opposition was filed and the appropriate fee was paid.
In J 3/80 (OJ 1980, 92) the board made it clear that if the national industrial property office concerned failed to forward a European patent application filed with that national office to the EPO in time, with the result that the application was deemed to be withdrawn (Art. 77(5) EPC 1973), the applicant could not claim restitution of rights, since the EPC provided only for restitution of rights where there had been a failure to observe a time limit which it was for the applicant to observe.