Abstract on Article 122 EPC for the decision T0549/24 of 19.01.2026

In T 549/24, the board held that intentional deception by an assistant designed to bypass existing cross-check controls constitutes exceptional circumstances justifying re-establishment under Art. 122 EPC. In the case under consideration, the application had been deemed withdrawn pursuant to R. 71(7) EPC, and no remedy had been pursued by the applicant within the time limit set by the communication under R. 112(1) EPC. The examining division had found the request for re-establishment of rights in respect of the time limit for requesting further processing, filed by the then newly appointed representative, to be admissible but not allowable. The examining division could not conclude that the applicant had acted with all due care required by the circumstances, as it found no evidence that the applicant had a satisfactory monitoring system for the activities of Mr R., the assistant in charge of the patent portfolio, nor an effective substitution system for Mr C., the company’s CEO and the person bearing ultimate responsibility, who was suffering from deteriorating health. The board disagreed. It found that Mr C. was not entirely prevented from carrying out his professional duties. While his condition did limit his ability to perform certain tasks, it did not render him completely incapable. Mr R. had been working as Mr C.’s personal assistant when he was entrusted with responsibility for the applicant’s patents. Even during the most severe phase of his illness, Mr C. regularly contacted Mr R. by telephone and made occasional short visits to the office to inquire about the status of the applicant’s patents. The board considered that, in the circumstances of the present case, a complete substitution of Mr C. was not necessary to satisfy the required standard of due care. On the contrary, the board regarded this a reasonable arrangement in the case of illness of the responsible person, as it served to compensate for the limitations resulting from Mr C.’s medical condition and allowed him to remain in a position to continue performing his functions, thus complying with the applicable standard of due care. With regard to the supervision of Mr R., the board considered, in view of the new evidence submitted on appeal, that the applicant did maintain a comprehensive monitoring system, as required by the case law in view of the size of the company, including an online spreadsheet editor for tracking the patent portfolio. This spreadsheet was regularly updated with action points and time-limit reminders. In addition, weekly face-to-face meetings were held with the responsible person whenever Mr C. was present, and, during the most severe phase of Mr C.’s illness, these took the form of regular phone calls and short office visits. The board was therefore satisfied that Mr C. had exercised all due care under the circumstances, including selecting, instructing and supervising his assistant. The board noted that Mr R. had deliberately concealed information, going so far as to create a private email account to bypass the company’s servers, and had either failed to update or had falsely marked IP records relating to renewal time limits. As a result, Mr C. had been kept unaware of certain time limits, despite having exercised all due care, since Mr R’s intentional deception was designed to also bypass the cross-check controls put in place by Mr C. Contrary to the examining division’s approach, which did not assess whether Mr R.’s behaviour justified re-establishment of rights, the board held that the disruption caused by Mr R.’s behaviour constituted exceptional circumstances justifying re-establishment under Art. 122 EPC. The board observed that the circumstances of the present case differed meaningfully from those in T 516/09. By contrast, Mr C., acting in his capacity as the applicant’s CEO (and not as a professional representative), had implemented a system for tracking time limits using an online spreadsheet tool and actively monitored its operation. This system included cross-checks and regular updates with Mr R. Unlike the representative in T 516/09, Mr C.’s core responsibilities did not centre on patent administration, and he could not reasonably have been expected to detect deliberate deceptions designed to circumvent internal controls. The board therefore concluded that the present case did not present the supervisory deficiencies identified in T 516/09. Accordingly, the decision under appeal was set aside and the appellant’s rights were re-established.