5.5.2 Due care on the part of the professional representative
Overview
5.5.2 Due care on the part of the professional representative
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When an applicant is represented by a professional representative, a request for restitutio in integrum cannot be acceded to unless the representative himself can show that he has taken all due care required of an applicant or proprietor by Art. 122(1) EPC (J 5/80, OJ 1981, 343). In other words, what Art. 122 EPC requires from an applicant also applies to an applicant's representative (T 1149/11).
The extensive case law on a professional representative's duty of care in dealing with assistants is dealt with below in this chapter III.E.5.5.4.
- T 600/18
No conclusive case has been submitted with the request for re-establishment of rights that explains why an attempt was (erroneously) made to pay the appeal fee using a form that was no longer accepted at the EPO. Article 122 EPC and the relevant case law does not excuse mistakes by the representative himself or herself that are caused by the ignorance of the latest provisions even if the representative does not normally perform the duty of paying fees himself or herself.
As he or she is the one that is expected to instruct and supervise his or her staff, he or she must always keep informed of the latest developments on how to handle the payment of fees.
As he or she is expected to remember what he or she has learned even in stressful situations it cannot be acknowledged that the mistake has happened despite all due care having been taken.
The situation (stress caused by an upcoming snow storm) cannot be equated with one where a patent attorney was incapable of taking sound decisions due to sudden serious illness or a sudden and unexpected bereavement.