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Case Law of the Boards of Appeal

 
 
2.2. Time limits excluded from re-establishment under Article 122(4) EPC and Rule 136(3) EPC

Under Art. 122(4) EPC in conjunction with R. 136(3) EPC, re-establishment is ruled out in respect of time limits for which further processing is available under Art. 121 EPC, such as the time limits for paying the filing fee, search fee, designation fees and examination fee, and for the time limit for filing the request for examination, as well as any time limit set by the EPO (see also OJ SE 4/2007; for the situation under the EPC 1973, see J 11/86).

Re-establishment is also excluded in respect of the time limit for requesting re-establishment (R. 136(3) EPC; this was also the case under the EPC 1973, see T 900/90), but is possible for the time limit for requesting further processing (see Art. 121(4) EPC; this was also the case under the EPC 1973, see J 12/92; J ../87=J 902/87, OJ 1988, 323; J 29/94, OJ 1998, 147).

In contrast to the situation under the EPC 1973, re-establishment in respect of the priority period (Art. 87(1) EPC) is possible under the EPC 2000. This change to the EPC has no implications for the interpretation of Art. 122(5) EPC 1973, which clearly rules out the time limit under Art. 87(1) EPC 1973 (see J 9/07).

The case law which excluded the grace periods under R. 85a and R. 85b EPC 1973 from re-establishment is now obsolete as these provisions have been deleted. Issues concerning the exclusion of PCT time limits under Art. 122(5) EPC 1973 are no longer likely to arise since the coming into force of the EPC 2000; for a detailed summary of the case law (G 3/91, OJ 1993, 8; G 5/92 and G 6/92, OJ 1994, 22 and 25; G 5/93, OJ 1994, 447; J 1/03; T 227/97, OJ 1999, 495) see "Case Law of the Boards of Appeal of the EPO", 5th edition 2006, Chapter VI.E.3; for a short summary see "Case Law of the Boards of Appeal of the EPO", 6th edition 2010, Chapter VI.E.4.