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Case Law of the Boards of Appeal

 
 
4.4.3 Requirement for a cross-check

In J 9/86 the board was of the opinion that in a large firm where a large number of dates had to be monitored at any given time, it was normally to be expected that at least one effective cross-check was built into the system (T 223/88, J 26/92, T 828/94 and T 808/03). The additional burden of an independent cross-check is not disproportionate for a large firm, where the cross check can be organised more economically than in a smaller one (T 1465/07). In relation to small firms and offices, the boards have at times dispensed with the requirement for a cross-check (e.g. J 31/90, T 166/87, J 11/03, see below).

In T 828/94 the board noted that a monitoring system should contain an independent cross-check to prevent the misunderstanding between a representative and a technical assistant from assuming that a notice of appeal would be prepared and filed on time by the other person, for example, someone would be responsible for checking independently of the representative and the assistant. The board noted that where a misunderstanding was likely to arise as a result of the two being responsible for the same file, the assistant should have clear instructions on how to proceed.

Concerning the need for an independent cross-checking mechanism and the form it should take, see also T 428/98 (OJ 2001, 494), T 1172/00, T 785/01, T 36/97, T 622/01, J 1/07 and J 13/07. In T 257/07 the board emphasized that an independent cross-check must necessarily include either another person or an automated system alerting another person.

In T 1962/08 the representative argued before the board that an independent cross-check in the system for monitoring time limits was not obligatory. The board confirmed what had been said in T 428/98, namely that the requirements to be met by a system for monitoring time limits in general included making sure that monitoring duties were not left to one person alone, but that the system incorporated an overall checking mechanism which was independent of the person responsible for monitoring time limits. This checking mechanism could be provided within a single system for monitoring time limits. If the checking mechanism involved a second system for monitoring time limits, the latter had to be independent of the former ("redundant") (see also T 1465/07).

In T 686/97 the board held that the provision of a "redundant" or "failsafe system" is an essential component of a normally satisfactory reminder system in corporate patent departments. The failure to provide administrative reminders to the responsible patent attorneys of the time limits applying to the filing of statements of grounds of appeal was incompatible with the operation of a normally satisfactory system.

In T 283/01 of 3.9.2002 the board pointed out that the applicant's system was not properly designed to handle the appeal in question, involving partial responsibility of an external representative. The deviation from the normal way of filing and prosecuting an appeal had been the applicant's deliberate decision in the particular circumstances of the case. Taking all due care required by the circumstances of the case should have implied installing an individual control mechanism, offering a realistic possibility of detecting and correcting the failure to note and calculate the time limit for filing the statement of grounds.

T 261/07 concerned a case in which an intermediary delivery service received and distributed mail within the patentee's premises. The board held that there had been no effective cross-check. Such a failsafe system would have required a regular comparison between the mail room database and the database of the Central Intellectual Property Department in order to discover discrepancies.

The case T 836/09 concerns the re-establishment of rights after an isolated mistake by an assistant within an otherwise satisfactory system of processing outbound mail. In a case where the mistake happened when processing the mail, the duty of at least one effective cross-check built into that system was dispensed with, irrespective of whether or not a large firm was concerned. The reason was that, in contrast to the monitoring of time limits, the risk of an error in the processing of outbound mail was low because such processing generally involved the execution of straightforward steps (see also T 178/07).

In T 1149/11 the board held that the duty of care concerning supervision of the assistant required that an effective cross-check was implemented, at least in a firm where a large number of time limits have to be monitored.

In T 73/89 the board rejected the application for re-establishment of rights because, in order to work properly, the normally satisfactory diary system required a qualified attorney to check whether, in any particular case, an extension was necessary or possible; in this case, concerning a patent department of two attorneys, no such check was made.

In T 166/87 the board held that in a relatively small office, normally working in an efficient and personal manner, employing normally reliable personnel, a cross-check mechanism, especially in relation to one-off payments such as an appeal fee, could fairly be regarded as superfluous.

In J 31/90 the board took the view that this system, while far from perfect, could be considered in the special circumstances of the case to be normally satisfactory. The board emphasised, however, that the system could only be so considered because of the particular conditions in which the representative and her secretary worked. Over a period of ten years, working together alone in a small office they had built up an excellent working relationship and mutual trust.

In T 428/98 (OJ 2001, 494) the board stressed the exceptional nature of the ruling in J 31/90 and T 166/87 and said that according to the appellant's submission his representatives' office was staffed by two patent agents, two lawyers, a partly qualified patent lawyer (Patentassessor) and a law graduate, i.e. six people dealing in their main professional capacity with cases relating to intellectual property rights. Such cases being commonly subject to time limits, with immediate negative legal consequences for the client if they were missed, time-limit monitoring in such an office was a major undertaking in terms of both significance and scale. The board therefore deemed a cross-checking mechanism to be essential (see also T1962/08, T 479/10).

In J 11/03 the board confirmed that the organisational requirements for a generally efficient time-limit monitoring system were subject to variation on account of the firm's size and nature and the number of time limits that had to be monitored. A cross-checking mechanism may in certain circumstances be regarded as superfluous in a small firm employing normally reliable personnel and normally working in an efficient and personal manner, but not in a large company with its own patent department (T 166/87). The appellant was a very small firm with a commercial division essentially comprising only the commercial manager and the book-keeper. In the circumstances additional checking that payments had actually been made might be deemed superfluous without impairing the functioning of the system.