Résumé de EPC2000 R 136(1) pour la décision T0231/23 du 08.12.2023

In T 231/23 the appeal was against the examining division decision rejecting the appellant's request for re-establishment of rights with regard to the time limit for paying the renewal fee for the 6th year with surcharge. According to the board, the admissibility of the appellant's request for re-establishment filed on 16 September 2020 depended on whether it was submitted in due time in accordance with Art. 122(1) EPC, R. 136(1) EPC. It was thus decisive when the cause of non- compliance with the time limit to pay the renewal fee together with a surcharge was removed. The board recalled that the removal of the cause of non-compliance with a time limit under R. 136(1) EPC was to be established on a purely factual basis and occurred, as a rule, on the date on which the person responsible for the application vis-à-vis the EPO became aware of the fact that a time limit had not been observed (T 1547/20, T 1995/19, J 27/90, T 1570/20) for example by receipt of a loss of rights communication under R. 112(1) EPC. As a rule, the cause of non-compliance did not persist longer than up to the time at which the previous unawareness of the missed time limit was removed (T 1995/19). If a professional representative was appointed, the representative was the person responsible for the application vis-à-vis the EPO (J 1/20). Accordingly, if a loss of rights communication under R. 112(1) EPC was issued to a duly appointed professional representative, the removal of the cause of non-compliance in principle occurred with the actual receipt of such a communication (T 1995/19, T 2251/12, T 812/04, T 1678/21). Regarding time limits for the payment of fees, an appointed professional representative remained the person responsible for the application vis-à-vis the EPO, and thus the person whose knowledge matters in assessing when the cause of non-compliance was removed, irrespective of whether a third party other than the representative was responsible for the payment of fees (see J 27/90, T 1570/20). In the present case, the loss of rights communication was received by the professional representative's firm on 7 February 2020. The professional representative denied that his colleagues at the firm presented this communication to him before 18 July 2020. The board noted that, even if this had happened, the representative's own affidavit confirmed that he already had at the very least actual knowledge of the relevant contents of this on 2 July 2020. Hence, at the latest on 2 July 2020, the representative gained actual knowledge of the missed time limit and the associated loss of rights. In line with the case law referred to above, the removal of the cause of non-compliance had occurred on this date at the latest. This triggered the two-month time limit under R. 136(1) EPC. The board reiterated that the removal of the cause of non-compliance - initiating the start of the two-month time limit under R. 136(1) EPC - did not require any additional knowledge on the part of the professional representative about possible reasons for missing the time limit, such as whether the non-payment of renewal fees had been intentional or not. It was sufficient that the representative became aware of the fact that the time limit for paying the renewal fee for the 6th year with surcharge had not been complied with. This knowledge objectively enabled the professional representative to take appropriate action, for example by filing a request for re- establishment of rights within two months of having gained that knowledge. The appellant contested the board's findings and argued that awareness of an error within the meaning of J 1/20 required actual knowledge by the professional representative that it had been unintentional on the part of the applicant not to pay the renewal fee. In the board's view, the gist of J 1/20 was that removal of the cause of non-compliance within the meaning of R. 136(1) EPC was a question of fact. Accordingly, the cause of non-compliance was only removed on the date on which the person responsible for the application became aware of the fact that a time limit had not been observed, and not on an earlier date on which it ought to have become aware of that fact. In conclusion, in the present case, the cause of non-compliance under R. 136(1) EPC was removed when the professional representative became aware of the missed time limit and the lapse of the application, which is established to have been the case at the latest on 2 July 2020. The appellant's request for re-establishment dated 16 September 2020 was not filed within two months of that date and was therefore inadmissible. The appeal was dismissed.