4. Admissibility of requests for re-establishment of rights
4.4. Substantiation of the request for re-establishment
Under R. 136(2) EPC (Art. 122(3) EPC 1973) the request for re-establishment has to state the grounds on which it is based, and set out the facts on which it relies. The boards consider this requirement in relation either to the admissibility of the request or to the submissions that must be taken into account when analysing the merits of the request (see in this chapter III.E.5.1. "Submissions to be taken into account").
It is a condition for the admissibility of a request for re-establishment of rights that a duly substantiated statement of grounds be submitted within the time limit for filing the request (J 15/10, see also J 19/05). A request for re-establishment of rights complies with the requirement of R. 136(2), first sentence, EPC if a conclusive case is made, setting out and substantiating the grounds and facts on which the request relies (J 15/10; T 13/82, OJ 1983, 411). Thereby it is ascertained that the factual basis for the requested decision is not altered after the expiry of the time limit for the request (J 15/10, J 19/05, T 585/08, T 479/10). Therefore, the request for re-establishment of rights must set forth the precise cause of non-compliance with the time limit concerned, specify at what time and under which circumstances the cause occurred and was removed, and present the core facts making it possible to consider whether all due care required by the circumstances had been taken in order to comply with the time limit concerned (J 15/10, T 479/10, T 178/23, see also J 18/98). A request for re-establishment of rights which relies on general statements only and contains no specific facts does not satisfy the requirement for a duly substantiated request under R. 136(2), first sentence, EPC (J 19/05, J 15/10, J 1/22).
In J 19/05 the Legal Board held that the request for re-establishment of rights was not sufficiently substantiated. The request was couched in purely general terms and contained no concrete facts identifying a reason for non-observance, the chronological sequence of events or the causes underlying the action or inaction of the persons involved concerning non-payment of a renewal fee.
In T 13/82 (OJ 1983, 411) the board held that a conclusive case must be made, setting out and substantiating the facts, for the probability - at least - that a wrongful act or omission on the part of an assistant was the cause of the failure to meet the time limit: the mere possibility was not sufficient to exculpate the applicant.
In T 287/84 (OJ 1985, 333) the board decided that an application for re-establishment of rights could be considered as complying with the requirement that it had to set out the facts on which it relied (Art. 122(3) EPC 1973) if the initially filed application in writing, which did not contain such facts, could be read together with a further document, which contained them and was filed before the expiry of the period within which the application had to be filed.
In T 324/90 (OJ 1993, 33) the board held that evidence proving the facts set out in the application could be filed after expiry of the two-month time limit laid down in Art. 122(2) EPC 1973. Only the grounds and a statement of the facts had to be filed within the two-month period. It was not necessary to indicate in an application for re-establishment the means (e.g. medical certificates, sworn statements and the like) by which the facts relied on would be proved. Such evidence could be submitted after the time limit, if so required (see also T 667/92 of 10 March 1994 date: 1994-03-10, T 261/07, T 1764/08).
In J 8/95 the appellants argued that the German-language version of Art. 122(3) EPC 1973 did not stipulate that the statement of grounds for an application for re-establishment of rights had to be filed within the time limit laid down in Art. 122(2) EPC 1973. The Legal Board decided that Art. 177(1) EPC 1973 assumed a uniform legislative intent, which could only be identified on the basis of all three texts of the EPC 1973 (see also T 324/90, OJ 1993, 33).
- T 1874/23
In T 1874/23 the board refused the request for re-establishment of rights and, as a consequence, rejected the appeal as inadmissible. The appellant’s request for oral proceedings was found to be obsolete.
The board recalled R. 136(1) EPC and noted that it corresponded to the principle of "Eventualmaxime" under which the request for re-establishment of rights must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage. Only if this requirement for immediate and complete substantiation within the time limit has been fulfilled, it might be permissible to complement the facts and evidence in later submissions, and provided that they do not extend beyond the framework of the previous submissions (e.g. J 19/05). According to the board, this was not the case for the request for re-establishment in the proceedings at hand. As a consequence, no further procedural steps were permissible, notably no further communication by the board and no appointment of oral proceedings. Neither would serve any legitimate purpose. It was not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a (further) chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions (e.g. J 11/09).
The board stated that it was undisputed that the right to oral proceedings as guaranteed by Art. 116(1) EPC was a cornerstone of proceedings before the EPO. The jurisprudence of the boards generally even followed the assumption of an "absolute" right to oral proceedings upon request as a rule, without room for discussion by the board, and without considering the speedy conduct of the proceedings, equity or procedural economy. However, even this "absolute" right to oral proceedings upon a party's request was subject to inherent restrictions by the EPC and procedural principles generally recognised in the contracting states of the EPO (Art. 125 EPC and J 6/22). Limits to the "absolute" right to oral proceedings had also been recognised in the jurisprudence of the boards (e.g. G 2/19, T 1573/20). Moreover, the boards' jurisprudence had repeatedly emphasised that the requirement of timely legal certainty, in particular in the context of intellectual property rights, was also recognised as a fundamental principle of the EPC. The parties' rights to a fair hearing within a reasonable time, in the context of the RPBA, had also been explicitly underlined by the boards' jurisprudence. In summary, where, as in the present case, oral proceedings served no legitimate purpose, the need for legal certainty in due time trumped and even prevented a board from appointing oral proceedings (J 6/22).
As to the interpretation of Art. 116(1) EPC, the board noted that the jurisprudence of the boards had reiterated the importance of a "dynamic" interpretation of the EPC in light of its object and purpose. In this context, the board referred, among others, to the development of the case law of the ECtHR on Art. 6(1) ECHR, where the ECtHR had also identified occasions where oral proceedings could or even should be dispensed with in pursuit of a party's right to a fair trial. In the board’s view, a literal interpretation of Art. 116(1) EPC conflicted with the legislature's aims when oral proceedings would serve no purpose and thus only prolong proceedings to no one's avail. A literal interpretation of Art. 116(1) EPC thus had to make way for a dynamic and evolutive understanding instead, in light of the provision's object and purpose. The very purpose of Art. 116(1) EPC could be summarised as providing for the essential right to be heard in oral proceedings only in so far as these served a legitimate purpose and thus did not run counter to the need for legal certainty in due time, as a further essential element of a fair trial for all parties.
The board concluded that, at least in the specific circumstances of the case in hand, legal certainty in due time, just as procedural economy, as further essential cornerstones of a fair trial, had to prevail (for essentially the same circumstances see J 6/22). In light of the principles of a fair trial and legal certainty in due time, there was no absolute right to oral proceedings under all circumstances (J 6/22). No oral proceedings had to be appointed in re-establishment proceedings where the "Eventualmaxime" principle would deprive oral proceedings of its very function as a further cornerstone of a fair trial and even run counter to it.