In J 11/06 the board held that according to the established jurisprudence of the Legal Board of Appeal following decision J 27/90, even if renewal fees were paid by someone else, the appointed professional representative remained responsible in the procedure before the EPO, and had to take the necessary steps to ensure payment if intended (likewise J 1/07, J 4/07, J 12/10). No reasons had been submitted as to which concrete steps had been taken. The board distinguished the case at issue from T 14/89 and J 13/90. In both these cases, specific reasons were given as to why the mistakes happened, and corroborating evidence was filed. In J 4/07 the European representative had every reason to believe that it was the appellant's intention to continue prosecution of the application in suit. Under these circumstances the Board did not consider that it was sufficient for the European representative only to send a single reminder more than four months prior to the expiry of the critical term. In J 12/10 the board confirmed that it was established jurisprudence of the boards of appeal that a representative, once appointed - and even if the renewal fees were paid by someone else - remained otherwise fully responsible for the application, and that this included a continuing obligation to monitor time limits, send reminders to the applicant, etc.
In J 19/04 the board held that a professional representative is not obliged to pay renewal fees on his client's behalf if he has received no instructions to do so. However, the representative's conduct has to be assessed according to the extent to which he has done all that is necessary to ascertain the client's true wishes (see also J 1/07). It is not the number of (unanswered) reminders that is decisive, but when those reminders were sent in relation to the date on which the time limit expired, how the reminders were formulated and what the representative's duties were in relation to the client.
In J 16/93 the board stated that a representative who had not received any funds for the purpose of paying the renewal fee and whose authorisation was silent in this respect was not expected to advance moneys on behalf of his client out of his own pocket. As the client was, in this situation, free to abandon its application by ceasing to pay the fees demanded by the Convention, the representative risked effecting a payment which he would not be able to recover either from the EPO (even though his client had not wished the payment to be made), or from the client, if the authorisation was silent in this respect.
In T 338/98 the appellant was first represented by professional representative A, but later asked him to transfer all files to a new representative B. One European patent application failed to be transmitted. Although the representatives were aware that the renewal fee was due for this application, they did not reach clear agreement about paying it, with the result that the fee was not paid and the application was deemed to be withdrawn. The board held that in these circumstances it did not appear appropriate formally to delimit the individual responsibilities of each of the representatives during a transfer of cases requiring, by its very nature, close co-operation between the persons involved and naturally leading to overlapping responsibilities. The fact that in these circumstances the representatives had been unable to reach agreement about the way to proceed and that the appellant had not been informed of the outstanding renewal fee and of the disappearance of the file in question was not an indication that all due care required by the circumstances had been taken at that moment.