4.5.3 Due care on the part of a non-authorised representative

In determining whether all due care has been taken, the acts of all those persons the appellant has asked to act on its behalf must be considered, which also applies to non-authorised representatives instructed by the appellant (T 2274/11 with reference to J 4/07).

In J 25/96 the board held that where a US applicant availed himself of the services of a US patent attorney for matters which in relation to the EPO fell within the applicant's responsibility, the US patent attorney had to be regarded as the agent of the applicant. Thus, to meet the "all due care" requirement, the US patent attorney had to show he had taken the due care required of an applicant (see also J 3/88, T 1401/05).

In J 4/07 the Board pointed out that a non-European representative can be held responsible for meeting the obligations of any representative whose duty it is to care for his client's interests, irrespective of whether such representative is entitled to represent before the EPO or any other patent office (see J 25/96). The monitoring of specific time limits that were set expressly does not depend on knowledge of EPC law. Thus a non-European representative must also establish a reliable monitoring system for such time limits. Furthermore, any representative, whether European or non-European, moving from one law firm to another must take provisions upon entry in that firm that those filed that he carries over are integrated into a time limit monitoring system.

In J 3/08 the board held that according to the established jurisprudence, if an agent was appointed, the agent had also to observe all due care and if he did not act accordingly this was imputed to the applicant. In the case at issue, it was clear that the agent, by not acting as instructed, had not properly handled the case. According to the board, if fraud by an agent were to be accepted as a reason for re-establishment of rights, by derogation from the general principle that an agent's behaviour was imputed to the applicant, the evidence presented must be so conclusive as to convince the board that a fraud took place as opposed to just unprofessional behaviour.

In T 742/11 the board held that the actions of an agent, who acted as an intermediary between the appellant and the professional representative, must be imputed to the party he is acting for, and the same level of care is expected from the agent as from a professional representative, or at least as from the party itself. Indeed, requiring a certain level of care from a professional representative and a party using his services would become utterly pointless if an intermediary acting between the party and the professional representative were not required to show the same level of care.

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