J 0002/94 21-06-1995

1. The admissible appeal lies from the decision of the Examining Division refusing re-establishment of rights in respect of the payment of the renewal fee for the third year. The allowability of a request for re- establishment can only be examined if an admissible request is filed. The request has to be filed within two months from the removal of the cause of non-compliance with the time limit. The omitted act has to be completed within this period. The request shall not be deemed to be filed until after the fee for re-establishment has been paid (Article 122(2) first and second sentence, (3), second sentence, EPC).

2. In the present case, the applicant was informed of the non-observance of the time limit by the communication of 1. April 1993 which the representative received before his telephone enquiry of 6 April 1993. In the absence of circumstances to the contrary, such information removes the cause of non-compliance. There are, however, special circumstances in this case since the cause of non- compliance was not the representative's unawareness of the fact that the renewal fee had not been paid. Rather the cause of the ommission to pay was his misconception that there was no instruction from the client to pay the fee. In the case of such an error of fact, the removal occurs on the date on which the person responsible discovered or should have discovered the error (J 27/90, OJ EPO 1993, 422, pt. 2.4 of the reasons).

3. According to the appellant's submissions, the representative became aware of the letter instructing him to pay on 22, 23, or 26 April 1993. This does not exclude the possibility that the payment necessary for the admissibility of the request was made outside the time limit pursuant to Article 122(2), first sentence, EPC: if the cause of non-compliance was removed on 22. April 1993, the time limit lapsed on 22 June 1993 (Tuesday), whereas the payment was not effected until 23. June 1993.

4. A request for restitutio in integrum has to set out the facts on which it is relies (Article 122(3), first sentence, EPC). The party has not only to prove that it was unable to observe the relevant time limit in spite of all due care having been taken but must also set out the facts from which the admissibility of the request can be derived. As already stated, a communication from the EPO informing of an omitted payment normally removes the cause of non-compliance. An error of fact justifying a deviation from this rule has to be established by the party requesting re-establishment. The facts submitted by the appellant include the possibility that the cause of non-compliance was already removed on 22 April 1993. It may be that it was removed on 23 or 26 April, but since the first possibility is neither remote nor theoretical, the Board cannot take it for granted that the cause of non-compliance was removed after 22 April 1993. If the facts submitted are not sufficient to ascertain that a request for re-establishment meets the requirements, the impossibility of furnishing appropriate proof goes against the applicant (T 682/92, dated 4 October 1993, not published in OJ EPO, concerning due care). The facts submitted cannot satisfy the Board that the time limit was kept. In such a situation, the request for re-establishment of rights cannot be considered admissible.

5. The appellant could not expect to be informed of the missing fees, immediately after receipt of his request for re-establishment by the EPO. Whereas the EPO may be obliged, on the basis of the principle of good faith governing the procedure before the EPO (G 5/88 OJ EPO 1991, 137), to give prompt information on a specific query, a party may not expect a warning in respect of any deficiency occurring in the course of the proceedings (J 41/92, OJ EPO 1995, 93, pt. 2.4 of the reasons). There was no evident indication in the appellant's letter which made a clarification or reminder necessary. The mere fact that the request was not accompanied by a cheque or a debit order did not require an immediate reaction by the EPO. Many payments are made in a way which is not apparent from the letter containing the request (cf. Article 5(1) RRFees). Therefore, the EPO can often only establish whether a specific fee has been paid after the expiry of a time limit when it disposes of the complete data on all payments made during the relevant period. The present case is not comparable to the situation where a party asks for clarification in respect of a certain requirement (J 41/92, op. cit.) or where the documents filed show that a part which was intended to be filed is actually missing (T 128/87, OJ EPO 1989, 406).

6. Under the circumstances of the case, it was an appropriate course of action that the Formalities Officer sent a fax, 16 days after the receipt of the request for re-establishment, informing the appellant that there was no indication that the fees had been paid. Although the Formalities Officer could not know at this time all the facts relevant for the removal of the cause of non-compliance with the time limit, the appellant was in any case given a chance to react. Considering that the appellant has not established that the cause of non-compliance was removed after 22 April 1993, the appellant was still in a position to make a valid payment when he received the fax in the morning of 18. June 1993.

7. It has to be concluded that the request for re- establishment was filed late and is, therefore, inadmissible. Since the Board comes to this conclusion on the basis that the appellant has failed to establish that the cause of non-compliance was removed after 22. April 1993, it is not necessary to consider whether the cause of non-compliance was already removed before that date. Neither is there a need to deal with other aspects regarding the admissibility of the request or with the question whether all due care was observed in respect of the time limit under Article 86(2) EPC.