Résumé de EPC2000 Art 122 pour la décision T1482/21 du 10.05.2023

See also abstract under Rule 124(1) EPC. In T 1482/21 the appellant (opponent 2) argued that the decision of the Receiving Section granting a request for re-establishment of rights in relation to the priority period was invalid, due to the Receiving Section's lack of competence to take this decision. Moreover, according to the appellant, it had to be possible to assess and review all preconditions for an entitlement to priority in opposition and opposition appeal proceedings, including whether or not the 12-month priority period pursuant to Art. 87(1) EPC had been observed. Under Art. 16 EPC in conjunction with R. 10 EPC the Receiving Section is responsible for the examination on filing and as to formal requirements of a European patent application up to the time when the examining division becomes responsible for the examination of the same. In the present case search had started on 15 February 2016 and the request for examination was only filed on 20 January 2017. Hence, when the Receiving Section took its decision of 14 January 2016, it was still responsible for the examination on filing and as to formal requirements. Under R. 136(4) EPC, the department competent to decide on the omitted act shall decide on the request for re-establishment of rights. In the case in hand, the omitted act was the filing of the application within the 12-month priority period pursuant to Art. 87(1) EPC. The Receiving Section was therefore competent to decide on the request for re-establishment of rights in respect of the priority period. The board found that the Receiving Section's decision of 14 January 2016 granting the request for the re-establishment of rights was final. If the Receiving Section rejects a request for re-establishment of rights in respect of the priority period, an applicant can lodge an appeal against this decision with the Legal Board of Appeal under Art. 21(1) and (2) EPC (see J 3/13). If the Receiving Section grants a request for re-establishment of rights in respect of the priority period, the applicant is not adversely affected under Art. 107 EPC. There is also no other party to the proceedings before the Receiving Section. Thus, a positive decision on such a request becomes final immediately. The board then went on to assess the binding nature of the Receiving Section's decision. It firstly referred to the effect of granting a request for re-establishment of rights under Art. 122(3) EPC, pursuant to which the legal consequences of the failure to observe the time limit concerned are deemed not to have ensued. The wording of Art. 122(3) EPC did not limit said effect to the proceedings in which the decision to grant that request was taken. Secondly, a decision on re-establishment of rights presupposed that there was a corresponding request to be decided upon. In the case in hand, such a request was only made in the proceedings before the Receiving Section and decided upon only in these proceedings. As under Art. 21(2) EPC the Legal Board is exclusively competent to review decisions of the Receiving Section (G 1/11), neither the opposition division nor the present technical board would have any power to review the Receiving Section's decision on re-establishment of rights. They could also not do so indirectly by reassessing the same matter of their own motion. Thirdly, any subsequent reopening of a favourable decision of the Receiving Section on re-establishment of rights would lead to considerable legal uncertainty for the party whose request was granted. It would also be in conflict with the principle of protection of legitimate expectations. The opposition division was correct in saying that it had to acknowledge the Receiving Section's decision to grant the request for re-establishment of rights in respect of the priority period. Therefore, the Receiving Section's decision was final. Other departments of the EPO such as an opposition division or a technical board of appeal which would decide on questions of priority in other, subsequent proceedings were prevented from reviewing and overturning the Receiving Section's decision granting the request for re- establishment of rights.