T 0428/98 (Re-establishment/KLIMA) of 23.02.2001

I. Where a communication from the Office notifies an applicant that he has missed a time limit, the cause of failure to complete the omitted act within the meaning of Article 122(2), first sentence, EPC is as a rule removed on the date when the applicant actually receives the communication, provided that failure to complete the act was purely due to previous unawareness that the act had not been completed. The legal fiction of deemed notification under Rule 78(3) EPC (in the version in force until 31 December 1998) has no effect on the date of removal of the cause of non-compliance, even if this works against the applicant because the actual date of receipt of the communication precedes the date calculated according to Rule 78(3) EPC (2.2).

II. An appellant may rely on information which the board's registrar can be proved to have provided by telephone concerning the method for calculating a time limit the appellant has to observe before the board if the point of law on which that information is based has at that time not yet been clarified in the case law of the boards of appeal (2.2).

III. Generally speaking, to satisfy the requirement of all due care, a system for monitoring time limits must not leave time-limit monitoring in the hands of just one person, but must incorporate at least one effective cross-check (confirmation of established case law, 3.5).

IV. Failure to submit evidence despite being requested to do so by the board may be viewed as a sign that the evidence would perhaps not confirm what has been claimed (3.6).