3.2 Merits of the request 

Applicants can have their rights re-established only if they show that they were unable to observe a time limit imposed in proceedings before the EPO despite taking all due care required by the circumstances. The obligation to exercise due care must be considered in the light of the situation before the missed time limit expired. "All due care" means all reasonable care, i.e. the standard of care that the notional reasonably competent proprietor, applicant or representative would apply in all the relevant circumstances (see T 30/90).

Where the cause of non-compliance with a time limit involves some error in the carrying out of the party's intention to comply with it, all due care is considered to have been taken if the non-compliance results either from exceptional circumstances or from an isolated mistake within a normally satisfactory monitoring system.

Whether there are exceptional circumstances justifying the re-establishment of rights depends on the specific facts of the individual case. Examples include organisational upheavals and sudden serious illnesses. In such cases, the requesters must show not only that those circumstances existed, but also that they took all due care, e.g. by carefully preparing the reorganisation or by having an effective staff substitution system.

Where a party alleges an isolated mistake within a normally satisfactory monitoring system, they must show that the monitoring system normally works well. Such a system must include an independent, effective cross-check mechanism. However, this requirement does not apply to relatively small entities/patent departments (see T 166/87 and J 11/03).

The duty to exercise all due care applies first and foremost to the applicant and then, by virtue of delegation, to the representative duly entrusted by the applicant to act on their behalf in prosecuting the application (see J 3/93). The obligations of the applicant and those of their representative are clearly distinct and depend on the relationship between them (see T 112/89 and J 19/04). In this regard, the scope of the mandate and any express instructions given to the representative are taken into account.

Applicants are entitled to rely on their representative. However, if they have been informed that instructions are required in order to meet a time limit, they have a duty to take all due care in the circumstances to meet the time limit (see T 381/93). The fact that the professional representative has acted correctly does not exempt applicants from suffering the consequences of their own mistakes or negligence.

Professional representatives have responsibility in proceedings before the EPO and must be presumed to be supervising their own work continuously (see T 1095/06). When professional representatives have been instructed by their client to perform a particular procedural action but do not receive the necessary additional instructions or required means in due time, they must in principle take all necessary measures to try to obtain these instructions from their client and ascertain their true wishes (see T 112/89 and J 19/04).

Professional representatives can delegate routine tasks, such as typing, posting letters, noting time limits or checking due dates, to assistants. In those cases, the same strict standard of care is not expected of the assistant as is demanded of the representative. However, the representative must show that the assistants have been carefully selected, duly instructed and periodically supervised (see J 5/80 and T 439/06).

If the applicants entrust another party with taking care of their application matters, e.g. a non-European representative or a fee payment agency, it has to be established that such a party has taken the due care required of an applicant for or proprietor of a European patent (see J 3/88). In particular, a non-European representative must also show that a reliable system for the monitoring of time limits was in place when the time limit was missed (see J 4/07).