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VI.E.9. Restitutio in integrum - Interruption of proceedings
In J ../87 (OJ 1988, 323) the board decided that, in accordance with R. 90 EPC 1973 (equivalent to R. 142 EPC save for a few editorial amendments), which the EPO must apply of its own motion, the legal incapacity of an applicant or his representative has the effect of interrupting proceedings and, where appropriate, the one-year time limit referred to in Art. 122(2) EPC 1973 (now R. 136(1) EPC).
In T 315/87 the board of appeal was faced with the question whether the EPO should not of its own motion first check whether the conditions for an interruption of proceedings under R. 90 EPC 1973 existed, before considering a request for re-establishment. The board stated that preference should be given to the application of Art. 122 EPC 1973, under which less severe impairment could also be grounds for re-establishment of rights. The question of any interruption of proceedings under R. 90 EPC 1973 could be left open provided that all the losses of rights which had occurred could be overcome by restitutio in integrum under Art. 122 EPC 1973.
In J 9/90 the Legal Board of Appeal held that for R. 90(1)(b) EPC 1973 (interruption of proceedings because of insolvency) to be applied in the light of Art. 60(3) EPC 1973 (unchanged) and R. 20(3) EPC 1973 (R. 22(3) EPC), the applicant entered in the Register of European Patents and the insolvent person (here, a limited company) had to be legally identical. However, the fact that the persons involved were not identical did not necessarily rule out re-establishment of rights under Art. 122 EPC 1973. Someone who was only indirectly affected by an event, such as insolvency, could be "unable" within the meaning of Art. 122(1) EPC 1973. In such a case however the persons so affected had to prove that they had exercised all the due care that could have been expected of them in the circumstances of such an insolvency.