4.2. Inability to observe a time limit

The word "unable" in Art. 122(1) EPC implies an objective fact or obstacle preventing the required action, e.g. a wrong date inadvertently being entered into a monitoring system (T 413/91, see also T 1054/03, T 1026/06, T 493/08, T 1962/08, T 836/09 of 17 February 2010 date: 2010-02-17, T 592/11, T 578/14). Unawareness of the expiry of the time limit must be distinguished from a deliberate act on the part of the applicant (representative) which is, for example, attributable to tactical considerations (see in this chapter III.E.4.2.1). Persistent financial difficulties incurred by the persons concerned through no fault of their own have also been recognised as such an obstacle (see in this chapter III.E.4.2.2).

In T 178/23, the board observed that the facts relied on by the appellant did not relate to an error in the carrying out of a party's actual intention to meet a specific time limit, but only to an error in relation to the intention to use a legal remedy entailing a time limit. Therefore, the appellant was actually able to file an appeal in due time but failed to do so because of a previous error as to motive, i.e. because it was unaware of the need to file an appeal to rectify the absence of the drawings in the patent specification. According to the board, this situation differed from those governed by Art. 122 EPC where a party did intend to observe a time limit but failed to do so due to objective obstacles.