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Under R. 136(1), first sentence, EPC (Art. 122(2) EPC 1973) an application for re-establishment of rights has to be filed in writing within two months of the removal of the cause of non-compliance with the time limit (except in the special case referred to in R. 136(1), second sentence, EPC). Under R. 136(2) EPC (Art. 122(3) EPC 1973) the application has to state the grounds on which it is based, and set out the facts on which it relies. The boards consider this requirement in relation both to admissibility and to the submissions that must be taken into account (see also 7.1 below). In T 1465/08 the board stated that the simple fact of paying a fee did not as a rule amount to the filing of a request. In the case of a request for re-establishment of rights, the mere payment of the fee does not suffice and does not meet the requirements of R. 136 EPC. According to the established case law of the boards of appeal, these provisions (of EPC 1973, but unchanged in that respect) have consistently been interpreted as meaning that a statement of grounds, containing at least the core facts on which the application relied, had to be filed within the stated time limit (J 18/98). An application relying solely on general statements and containing no specific facts is inadmissible for lack of substantiation (J 19/05).
In T 13/82 (OJ 1983, 411) the board held that the application would be duly supported only if it was clear from the facts set out and substantiated that the applicant had taken all due care required by the circumstances to observe the time limit. The board held that a conclusive case must be made, setting out and substantiating the facts, for the probability ‑ at least ‑ that a wrongful act or omission on the part of an assistant was the cause of the failure to meet the time limit: the mere possibility was not sufficient to exculpate the applicant (T 715/89).
In T 287/84 (OJ 1985, 333) the board decided that an application for re-establishment of rights could be considered as complying with the requirement that it had to set out the facts on which it relied (Art. 122(3) EPC 1973) if the initially filed application in writing, which did not contain such facts, could be read together with a further document, which contained them and was filed before the expiry of the period within which the application had to be filed.
In T 324/90 (OJ 1993, 33) the board held that evidence proving the facts set out in the application could be filed after expiry of the two-month time limit laid down in Art. 122(2) EPC 1973. Only the grounds and a statement of the facts had to be filed within the two-month period. It was not necessary to indicate in an application for re-establishment the means (e.g. medical certificates, sworn statements and the like) by which the facts relied on would be proved. Such evidence could be submitted after the time limit, if so required (see also T 667/92 and T 261/07).
In J 19/05 the board held that an application for re-establishment of rights must be sufficiently substantiated, in accordance with Art. 122(3), first sentence, EPC 1973, to ensure that any subsequent introduction of fresh grounds can be ruled out. An application for re-establishment relying on general statements and containing no specific facts is not considered to satisfy the requirement for substantiation and is therefore to be refused as inadmissible. In the case at issue, an appellant's application for re-establishment of rights was couched in purely general terms and contained no concrete facts identifying a reason for non-observance, the chronological sequence of events or the causes underlying the action or inaction of the persons involved concerning non-payment of a renewal fee. Nor was the inadequate substantiation augmented by the account of the facts in a subsequent letter from the representative. The reason for non-observance given in the letter, i.e. a "misunderstanding", was unsubstantiated, as was the claim that a "transmission error" had occurred, since there was no explanation as to who had misunderstood what and when this had happened.
In J 8/95 the appellants argued that the German-language version of Art. 122(3) EPC 1973 did not stipulate that the statement of grounds for an application for re-establishment of rights had to be filed within the time limit laid down in Art. 122(2) EPC 1973. In the current case, the language of the proceedings was German; clearly, therefore, the decision had to be based on the German version. The board however decided that Art. 177(1) EPC 1973 assumed a uniform legislative intent, which could only be identified on the basis of all three texts of the EPC 1973 (see also T 324/90, OJ 1993, 33).
In J 26/95 (OJ 1999, 668) the applicant had missed two time limits which expired independently of one another and each resulted in the application being deemed withdrawn. The board held that in such an event a request for re-establishment had to be filed in respect of each unobserved time limit. Where two different time limits had been missed the loss of rights could only be overcome if the applicant showed, in respect of both time limits, that all requirements of Art. 122 EPC 1973 for the requests to be admissible and well-founded were met - including the payment of two fees under Art. 122(3), second sentence, EPC 1973.