Re‑establishment of rights may be requested only for cases where non‑observance of the time limit is the direct cause of either the lapse of the Unitary Patent's lapse under Rule 14(1)(b) UPR or a loss of any other right or means of redresslegal remedies.
The main circumstances giving rise to re-establishment of rights in proceedings before the UPP Division are filing the request for unitary effect too late and failing to duly pay renewal fees for the Unitary Patent (see 2.3 and 3.1.7 3.7 respectively).
In the case of a late-filed request for unitary effect, the European patent proprietor may be able to obtain re‑establishment of rights in respect of the non‑extendable one-month period specified in Rule 6(1) UPR. Re‑establishment of rights may also be requested if the time limit under Rule 13(3) UPR for paying the renewal fee together with the additional fee (50% of the renewal fee, see 3.10) is missed. The one-year period runs from the last date on which the renewal fee could still have been paid together with the additional fee.
Re‑establishment of rights may also be requested if the time limit for the following acts is missed:
- filing of a request for compensation (Rule 9(1) UPR)
- payment of the overdue compensation amount owed granted on the basis of a false declaration and the related administrative fee (Rule 10(4) UPR)
- submitting a request for a decision (Rule 20(2)(d) UPR in conjunction with Rule 112 EPC, which applies mutatis mutandis pursuant to Rule 20(2)(d) UPR).
Re‑establishment of rights is not available in respect of the period time limit for requesting re‑establishment of rights (Rule 22(6) UPR) and or the correction of deficiencies referred to in Rule 7(3) UPR (see Rule 22(6) UPR and (see 2.4)).Where the Unitary Patent proprietor failed to observe the time limit for paying the renewal fees under Rule 13(2) UPR, they can still comply with that requirement by paying the renewal fee with the additional fee under Rule 13(3) UPR. Therefore, as no direct loss of rights occurs in those circumstances, reestablishment of rights is not applicable.