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Case Law of the Boards of Appeal

 
 
4.3.1 Organisational upheaval

In T 14/89 (OJ 1990, 432), due to internal reorganisation and removals, the R. 58(5) EPC 1973 communication did not reach the responsible department of the patent proprietor. The board found that this fact, which led to non­observance of the time limit, constituted an isolated mistake such as could not be ruled out despite careful company organisation.

In T 469/93 the board found that even if all due care required by the circumstances were to be exercised, the occasional error during complex transfers of company ownership could not entirely be avoided. The error in this case being an exceptional one, the causes of which had since been removed, the appellant's request for re-establishment of rights was to be allowed.

In J 13/90 (OJ 1994, 456) the applicant, a small firm employing about 15 people, was in takeover negotiations with another company. In the course of the negotiations a change of attorney took place. As a result of the unforeseeable breakdown in negotiations plus the fact that action had already been taken to replace the previous attorney, payment of the fourth-year renewal fee had been overlooked. This isolated mistake in a special situation was, in the board's opinion, excusable.

In J 21/92 and J 24/92 the applicant and his representative (both Americans) had each changed their fee-monitoring system, independently of each other. The situation was further complicated by the fact that the representative was no longer responsible for paying the appellant's renewal fees.

In T 369/91 (OJ 1993, 561) the relevant circumstances involved moving from a manual to a computerised time-limit monitoring system. Here "due care" meant ensuring that during the changeover period the representatives handling the various kinds of cases were told which system - manual or computerised - had generated the reminder in question. Only then could they reliably know if and when a further reminder was likely.

In T 489/04 the board did not recognise the installation of a new computer system as an extraordinary circumstance. On the contrary, it considered the resulting burden on employees as foreseeable and containable, had appropriate measures been taken in good time.

In J 11/06 the appellant submitted that, due to the removal and later change of the US representative, there was some confusion caused by this reorganisation. However, the board noted that no details at all had been given as to why this affected the payment of the renewal fee. Likewise in J 4/07 the board did not recognise the presence of exceptional circumstances because the representative's submissions were inadequate.