T 0073/89 07-08-1989

I. Appellant's European patent application No. 82 304 717.0 was refused by a decision of the Examining Division 058 of the European Patent Office dated 17 August 1988.

II. By a letter dated 29 September 1988, received at the EPO on 3 October 1988, the Appellant filed a notice of appeal against this decision and paid the appeal fee.

III. On 21 December 1988, the Appellant sent a telex to the EPO (duly confirmed by a letter received on 24 December 1988) having the following content: "This is to request a two month extension of the time limit for responding to the communication dated 17.08.88 as I am having to consult with the applicant's attorneys in the United States."

IV. On 4 January 1989 an EPO formalities officer informed the Appellant's Representative by telephone that no statement setting out the grounds of appeal had been received at the EPO within the prescribed time limit, which had expired on 27 December 1988.

V. In a letter dated 3 February 1989, received at the EPO on 8 February 1989, the Appellant's Representative filed an application for re-establishment of rights. The letter was accompanied by a debit order for the fee for re- establishment of rights and a statement setting out the previously omitted grounds of appeal.

VI. In support of the application for re-establishment of rights, the Appellant's Representative submitted essentially that the failure to file the grounds of appeal on time had been unintentional. He had consulted with the instructing attorney in the United States in November 1988, but as a result of more urgent matters he had been unable to take up this case again until December 1988. The resignation of one of the three European Patent Attorneys working in the Appellant's London Patent Department at the end of November had meant that the remaining two had had to deal with the work normally done by three of them. The Appellant's London Patent Department had closed down from 23 December 1988 to 3 January 1989. On 21 December 1988 he had asked his secretary to prepare and send telexes requesting extensions on all those of his cases requiring responses before 3 January 1989, including the present case, because they had mistakenly thought that the time limit concerned was one set by the EPO rather than one fixed by the EPC. They had only realised the mistake when the EPO formalities officer had telephoned. If it had not been for the Christmas holidays, it was probable that the EPO would have notified them of the mistake before 27 December 1988, so that they could have filed the grounds of appeal in time. Despite due care having been taken, as evidenced by their keeping of a diary and their requesting of an extension, an accidental oversight due to pressure of work had led to the time limit not being observed.

VII. In a communication dated 22 May 1989, the Board informed the Appellant that it was not convinced that all due care had been taken. The general impression given by the telex of 21 December 1988 was that the Appellant was not even aware of the fact that it was an appeal case with which he was dealing. Furthermore, the reason given in that telex, namely that the Appellant's Representative was having to consult with the attorneys in the United States, seemed to be in contradiction with the statement in the letter dated 3 February 1989, according to which the consultation had already taken place in November 1988. It was questionable, whether the way in which the diary had been kept and used in this case amounted to taking all due care as required by Article 122(1) EPC.

VIII. In a telecopy sent on 21 July 1989 (confirmed by a letter received at the EPO on 26 July 1989) the Appellant's Representative explained that he had indeed been aware, from their diary listing, that the present case was an appeal case, but not that the term was inextensible. They relied on the attorney in charge of the case to check whether an extension is necessary or possible. They had now modified their system to identify, wherever possible, inextensible deadlines in their diary, although it was not immediately apparent from the various types of letters they received from the EPO whether a given term was extensible or not. The fact that a particular communication was concerned with an appeal did not always mean that the term for response was inextensible. He had not checked the files before asking his secretary to request the extensions, due to the pressure of work immediately before the Christmas holiday. The wording used in the telex was a standard form on his secretary's word processor. Normally, the actual words used to request an extension of a term for response would be relatively unimportant, provided the application number and relevant communication were properly identified (as was the case here). The consultation with his United States colleague had already taken place (before the telex was sent). Their diary system worked extremely well if used as intended. His failure to review the case was a "one off" oversight, due to human error under pressure. It was the only error of this kind he had made in more than 20 years of practice.