3.2.1 Tactical considerations

In T 413/91 the appellant's reasons for not filing any statement of grounds were that he had expected an agreement with the proprietor, which, however, did not come about. The board stated that such a reason did not justify re-establishment of rights, pointing out that it was an extraordinary means of judicial remedy. It offered no choice to a party as a substitute for the proper action to be taken, nor did it imply any right to have the fatal effect of an intentional step cancelled, even if this step later on proved to have been a mistake. A party who had deliberately chosen not to file a statement of grounds for the appeal could not achieve an appellate review through the back door of a request for re-establishment.

In J 2/02 the board added that Art. 122 EPC did not imply for an applicant any right to have the final effect of an intentional action cancelled. Holding back the payment of the fee for a reason other than being unable to comply with the legal provisions - particularly as a matter of strategy in the circumstances and for tactical considerations - is outside the scope of Art. 122 EPC, and deprives the applicant of the possibility to invoke this article.

In T 1026/06 the board distinguished its case from the situation in T 413/91 and J 2/02, in which the boards had not recognised the act of intentionally allowing a time limit to expire as an obstacle. These two cases differed from the current case, in so far as the parties concerned had deliberately refrained, for motives extraneous to the proceedings, from performing the required actions, whereas the appellant in the current case had been unable to file an appeal because of a mistake of law.

In T 250/89 (OJ 1992, 355) the opponent had claimed that he could not have filed the statement of grounds in due time because he would have needed to refer to documents withheld by a third party. The board confirmed the line taken in earlier decisions (see G 1/86, OJ 1987, 447; T 287/84, OJ 1985, 333). When determining whether all due care required by the circumstances had been taken, the word "all" was important and failure to observe a time limit had to be the result of an oversight, not a culpable error. The board rejected the application for re-establishment of rights on the ground that the opponent had had sufficient material at his disposal to be able to draw up the statement of grounds in due time in accordance with Art. 108, third sentence, EPC 1973 and R. 64 EPC 1973.

In J 11/09 the representative omitted to make payment of the third renewal fee because he was unwilling to advance the renewal fee on account of unpaid invoices. Accordingly, the renewal fee remained unpaid not inadvertently, but on purpose. Given that payment had been refused on purpose, it was not possible to say that a one-off error had occurred in an otherwise well functioning system in the professional representative's office.

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