5.4.3 Cause of mistake remains unclear

In T 529/09 the board allowed the request for re-establishment of rights. The board accepted that the representative's firm had a well-functioning and reliable system in place for processing incoming mail and monitoring time limits. The fact that in the case at issue the communication was apparently misplaced (since it did not reach the representative in charge and the time limit set in it was not entered in the computer system of the firm) had to be regarded as an isolated mistake in an otherwise satisfactory system. While the precise circumstances of the mistake could not be elucidated any further, this was not a sufficient reason for denying that all due care required by the circumstances had been observed in the present case. See also T 580/06, T 1355/09.

In J 7/15 the Legal Board could not determine with any degree of certitude what caused the non-payment of the renewal fee. The applicant had used the services of an external company for paying the renewal fees, a system which had worked flawlessly for more than 15 years but failed in the case in hand. In the circumstances the board followed the reasoning of T 529/09 and gave the benefit of the doubt to the appellant, granting the request for re-establishment of rights. In T 1513/21 the appellant brought forward only that despite instructions to file the notice of appeal and pay the appeal fee, the responsible party had omitted the filing of the notice of appeal and that this failure resulted solely from an isolated mistake by an experienced patent administrator. The board found that no specific reasons were given as to why this failure occurred and why it could still be concluded that all due care was taken. No evidence at all was given of a normally satisfactory system of monitoring, and cross-checks, or explanation as to why the system did not work in this specific case. The request for re-establishment was refused.