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In numerous decisions the boards have ruled on the "all due care required by the circumstances" issue. In considering it, the circumstances of each case must be looked at as a whole (T 287/84, OJ 1985, 333). The obligation to exercise due care must be considered in the light of the situation as it stood before the time limit expired. In other words, the steps the party took to comply with the time limit are to be assessed solely on the basis of the circumstances applying at that time (see i.e. T 667/92, T 381/93, T 743/05, J 1/07, T 1465/07).
In T 30/90 the board held that the allowability of applications for re-establishment hinged on whether the conduct of the appellant and/or his representative, during the entire period after the relevant decision, was indicative of "all due care required by the circumstances". In this connection, "all due care" meant all appropriate care, i.e. as much as would be taken under the circumstances by the average reasonably competent patentee/representative.
In J 23/87 the board ruled that exercising due care under Art. 122 EPC 1973 meant that an applicant, when deciding whether to pursue his application, could not rely entirely on information provided voluntarily by PCT authorities and the EPO at various stages of the procedure, and instead had to ensure that he was normally able to comply with the basic PCT and EPC 1973 time limits even if he received this information late or not at all.
In accordance with the established case law of the boards, re-establishment cannot be justified by ignorance or misinterpretation of an EPC provision. This also applies to individual applicants without a representative (J 2/02). With regard to re-establishment in respect of disciplinary proceedings and the European Qualifying Examination, the board ruled in D 6/82 (OJ 1983, 337) that a mistake of law, particularly one regarding the provisions on notification and calculation of time limits, did not, as a general rule, constitute grounds for re-establishment of rights. The obligation to take "all due care required by the circumstances" meant that persons engaged in proceedings before or involving the EPO had to acquaint themselves with the relevant procedural rules.
For cases where the cause of non-compliance with a time limit involves some error in the carrying out of the party's intention to comply with the time limit, the case law has established the criterion that due care is considered to have been taken if non-compliance with the time limit results either from exceptional circumstances or from an isolated mistake within a normally satisfactory monitoring system (J 2/86, J 3/86, OJ 1987, 362; T 428/98, OJ 2001, 494 and T 785/01; for the requirements to be met by an individual applicant without a representative, see also below point 7.4.1b)). In the latter case, the relevant party must show that the system normally works well (see e.g. J 9/86, J 27/88, J 28/92, T 27/86, T 166/87, T 715/91, T 612/90, T 731/91, T 179/92, T 371/92, OJ 1995, 324; T 377/93, T 956/93, T 681/95, T 1062/96, T 186/97, T 428/98, OJ 2001, 494 and T 785/01).