J 0902/87 (Incapacity) of 17.08.1987

1. An appeal is to be considered sufficiently well-founded to satisfy the requirements of Article 108, third sentence, EPC, if it refers to a new circumstance which, if confirmed, will invalidate the contested decision.

2. In accordance with Rule 90 EPC, which the Office must apply of its own motion, the legal incapacity of an applicant or his representative has the effect of interrupting proceedings and, where appropriate, the time limit referred to in Article 122(2) EPC. Thus, if such incapacity is invoked where a decision based on such a time limit is appealed, that decision must be cancelled and the matter referred back to the first instance for a fresh decision that takes account of the new circumstance.

3. Rule 90(4) EPC has to be interpreted as deferring the payment date for renewal fees falling due during the period of incapacity of the applicant or his representative until the date proceedings are resumed.

4. Article 86(3) EPC provides that where the EPO finds that a renewal fee has not been paid it must rule that the patent application in question is deemed to be withdrawn without power of discretion to assess the circumstances that led to non-payment. Where, however, no such ruling is taken and, on the basis of information supplied by the EPO, an applicant or his representative may in all good faith be led to believe that a renewal fee has been duly paid, such fee must be considered to be so paid for the purposes of the proceedings by virtue of the maxim "error communis facit jus".