T 0808/03 12-02-2004

1. Jurisdiction

1.1. The purported decision to grant restitutio in integrum in relation to the filing of the notice of appeal was made by a formalities officer acting on behalf of the examining division pursuant to Rule 9(3) EPC and the Notice of the Vice-President of Directorate-General 2 dated 28 April 1989 (OJ EPO 1999, 504). Item 11 of this notice entrusts formalities officers with "Decisions as to applications under Article 122(4) EPC, where the application can be dealt with without further taking of evidence under Rule 72 EPC", while the latter subarticle, which vests jurisdiction for deciding on applications for restitutio in integrum, provides that: "The department competent to decide on the omitted act shall decide on the application." Here the omitted act is the filing of a notice of appeal and the department competent to decide whether an appeal is admissible and thus inter alia whether a notice of appeal meets the requirements of the EPC is the EPO Board of Appeal (Rule 65(1) EPC); cf T 949/94 of 24 March 1995, not published in OJ EPO, at point A.1 and T 473/91 OJ EPO 1993, 630.

1.2. This competence in relation to admissibility of an appeal is, however, subject to an exception, since Article 109(1) EPC empowers the department of first instance in ex parte proceedings to set aside its own decision if it considers an appeal to be "admissible and well-founded". This is not full jurisdiction to decide whether an appeal is admissible; there is no power to decide that an appeal is not admissible, nor is there power to decide that an appeal is admissible but not well founded. There is only the limited power to set aside uno actu an own decision if the appeal is considered admissible and well founded.

1.3. Thus even if it were considered - arguendo and contrary to the reasoned conclusion in T 473/91, which the present board finds persuasive - that the examining division acting under the limited jurisdiction over admissibility vested in it by Article 109(1) EPC qualified as "the department competent to decide on" the due filing of a notice of appeal within the meaning of Article 122(4) EPC, this power would not be susceptible of being split and partially entrusted to a formalities officer for "decision" pursuant to item 11 of the notice of the Vice-President of DG2 referred to above.

1.4. The present case is an example of the mischief which can result by attempting to operate such a scheme. Here the formalities officer purported to decide that the appeal met the formal requirements for admissibility set out in Articles 106, 107 and 108 EPC independently and in advance of the substantive consideration of the appeal by the examining division under Article 109(1) EPC - apparently implicitly anticipating that the latter would set aside its own decision so as to retrospectively sanction the action of the formalities officer. In the event this did not happen and the appeal was referred to the board of appeal pursuant to Article 109(2) EPC.

1.5. The appellant applicant accepts that the formalities officer was not empowered to grant restitutio in integrum in relation to the filing of a notice of appeal outside the context of the granting of interlocutory revision pursuant to Article 109(1) EPC and that the purported decision is accordingly voidable by the board. He argues, however, invoking the principle of legitimate expectations that the impugned decision should not be so voided, since the appellant applicant was entitled to rely on the ostensible authority of the formalities officer.

1.6. The board is not persuaded by this argument, if only because no evidence has been submitted that any act of reliance was performed during the interval between the receipt of the purported decision of the formalities officer posted 16. July 2003 and the communication posted 7 August 2003 from the registry of the board of appeal to the effect that the appeal had been referred to Technical Board of Appeal. Oral proceedings were interrupted to allow the appellant applicant time to furnish details of a divisional application alleged to have been filed, but he was unable to do so.

1.7. The appellant applicant has also adduced the additional and alternative argument that the formalities officer should be regarded as having been empowered by Article 109(1) EPC, since at the time the latter took the impugned decision it had been - according to informal contact the appellant applicant had had with the examining division - the intention of the division to grant interlocutory revision, this intention having then been frustrated by the imminent expiry of the three months term allowed by Article 109(2) EPC. The board cannot give any credence to such unsubstantiated allegations, not least having regard to the fact that the examining division is prohibited by the subarticle from recording in the public file any comments on the merits of an appeal unless and until interlocutory revision is granted. It is therefore inappropriate for the appellant applicant to seek to glean information from the division during this phase of the procedure and it would be inequitable for it to derive any right or advantage from such informal contact.

1.8. By the same token, the argument that this unsubstantiated allegation of a frustrated intention of the examining division should constitute a reason for remittal to the department of first instance for interlocutory revision is misconceived. The latter has a conventionary obligation to consider the admissibility and well-foundedness of an ex parte appeal. If such consideration has not led to a positive result within the conventionary limit of 3 months the case is referred without comment to the board of appeal. The board has no power to order reconsideration, but, on the other hand, even if it had grounds for believing that the appeal had not been considered at all, the board would not be obliged to remit the case for consideration; the obligation of the department of first instance to consider is not mirrored by a right for the appellant to first instance consideration; cf decision T 638/01 of 12 September 2001, not published in the OJ EPO, at points 5.1 and 5.2.

1.9. Neither is the board persuaded by the appellant applicant's submission invoking Article 125 EPC to the effect that the board should treat a decision on restitutio in integrum as res judicata since this is alleged to be the legal position at least in the UK and Germany. No evidence was presented to substantiate this submission, in particular no evidence that this would be the case in any contracting state for ultra vires decisions such as the present. In the judgement of the board this equitable aspect of the situation is fully dealt with by the established jurisprudence of the boards of appeal in relation to the principle of legitimate expectations which was taken account of at 1.6 above.

1.10. The appellant applicant cited T 317/89 of 10 July 1991, not published in OJ EPO, point IV of the facts and submissions, as a precedent for a board of appeal recognising the competence of the formalities officer in DG2 to grant restitutio in integrum in relation to a late-filed notice of appeal in a case where interlocutory revision was not granted although, according to the board, it clearly should have been. However, it is not clear to the present board why the board in the cited decision tacitly acquiesced in the department of first instance's assertion of jurisdiction and, for the reasons given at points 1.1 to 1.9 above, this board respectfully declines to follow an unreasoned precedent.

2. Restitutio in integrum

2.1. The request for restitutio in integrum is admissible.

2.2. Due care

2.2.1. The appellant applicant admits that the system for monitoring time limits operated in the office of the instructing overseas representative did not meet the standard of 'due care' laid down in the established jurisprudence of the EPO Boards of Appeal as explicitly confirmed in T 428/98, OJ EPO 2001, 494, in particular there was no independent cross- check. He submits that it was unreasonable for the EPO Boards of Appeal to require a higher standard in this respect than the EPO (in the appellant applicant's opinion) operated itself in observing and monitoring time limits. In the judgement of the board, this argument is devoid of merit as it appeals to a notion of ethical symmetry which is inapplicable in the context of Article 122(1) EPC. This subarticle relates only to the 'due care' to be exercised by an applicant or proprietor in observing a time limit vis-à-vis the EPO. Although it is a general legal concept, 'due care' has always to be interpreted in relation to the particular provision in which the term occurs as is underscored in the subarticle by the words "required by the circumstances".

However, even on the lower standard of 'an isolated mistake by a usually reliable person' the present request for restitutio in integrum would fall to be refused since, according to the evidence, in the system as operated the only practical possibility for correcting the first mistake in processing the original reporting letter, viz an appropriate reaction to the reminder letter, was also missed as a result of a second mistake by the same person in the processing of the latter. 'Due care' would require a reminder to be given close attention as a possible signal that a deadline is in danger of not being met.