Zusammenfassung von EPC2000 Art 122 für die Entscheidung J0006/22 vom 26.07.2023

In J 6/22 the appellant had requested re-establishment of rights with respect to the time limit for the statement of the grounds of appeal, citing merely the medical condition of its European professional representative. This was complemented by the representative's declaration, essentially outlining that in the period from 27 April 2022 to end of June 2022 the representative began to suffer from a medical condition which continued developing and that said representative was the sole attorney in the office who was empowered to act before the EPO. Sick leave certificates for the representative were also submitted, merely stating the representative's inability to work from 24 August to 28 September 2022, without giving any further details. The Legal Board recalled that a request for re-establishment must set out, in a sufficiently substantiated fashion, the grounds on which it is based, the facts on which it relies and the precise cause of non-compliance with the time limit concerned, and it must specify when and under which circumstances the cause occurred and when it was removed (see J 15/10). The Legal Board then referred to the jurisprudence of the boards to observe that the reference to a declaration like the representative's might suffice for the request for re-establishment to be properly substantiated if the necessary facts and reasons are given in that declaration (see T 287/84). In the case at hand, no reasons could be found as to why the representative would not have been in a position throughout the whole two-month time limit for the subsequent filing of the grounds of appeal to take any action. No reasons were given on how far-reaching the representative's medical condition was or what actions might have become impossible because of it. The medical certificates also laid out no conclusive details. Moreover, they covered a period that was completely different (August to September 2022) from the one in question (April to June 2022). Lastly, nothing was said about a system of staff substitution that should have kicked in in case of the representative's inability to act. If said representative was the only one capable to act before the EPO, provisions would have had to be made to provide for substitution from outside the office. Notably, the office in question was part of a large IP consulting group operating worldwide, and they should have provided a backup. The request for re-establishment being pursued by their colleagues in the sister office at least showed that such a substitution would have been feasible, and no reasons to the contrary were given. Thus, the Legal Board found on the basis of the appellant's own submissions and factual assertions that it could not be said that all due care had been taken as required by the circumstances. Absent any kind of provisions for the representative's substitution, the request for re-establishment into the time limit for the grounds of appeal had to fail for this reason alone. Since the request for re-establishment of rights was refused, the grounds of appeal were late-filed and the appeal was rejected as inadmissible (R. 101(1) EPC in conjunction with Art. 108 EPC). The Legal Board went on to observe for the sake of completeness that the appeal against the examining division's decision rejecting the request for re-establishment into the time limit for the payment of the seventh renewal fee plus the additional fee would also not have been successful on the merits. In claiming that all parties had exercised all due care for the payment of the fees in question, the appellant had overlooked that all acts of its "US agent", an intermediary between it and the European professional representatives, tasked "to supervise the procedure and communicate with the agent empowered to act before the EPO", were also fully attributed to it (see T 742/11). No reasons had been given to conclude that the US agent had exercised all due care. To the contrary, from the appellant's own arguments, it was apparent that the US agent, by not monitoring the time limits properly, not proactively reaching out to the appellant, not responding to a large number of emails and not making provisions for staff losses, had not exercised all due care. For these reasons alone, there would also have been no need to look further into the appellant's own or its European professional representatives' behaviour.