J 0005/80 (Rest.in integrum/due care of prof.representative) du 07.07.1981

I. When an applicant is represented by a professional representative, a request for restitutio in integrum cannot be acceded to unless the representative himself can show that he has taken the due care required of an applicant or proprietor by Article 122(1) EPC.

II. If the representative has entrusted to an assistant the performance of routine tasks such as typing dictated documents, posting letters and parcels and noting time limits the same strict standards of care are not expected of the assistant as are expected of the applicant or his representative.

III. A culpable error on the part of the assistant made in the course of carrying out routine tasks is not to be imputed to the representative if the latter has himself shown that he exercised the necessary due care in dealing with his assistant. In this respect, it is encumbent upon the representative to choose for the work a suitable person, properly instructed in the tasks to be performed, and to exercise reasonable supervision over the work.

IV. However, if the representative delegates to an assistant a task which, by virtue of his professional qualification, normally falls to him, as for example the interpretation of laws and treaties, the representative will not be able to establish that he has exercised all due care required by the circumstances.

V. Article 48(2)(a) PCT is to be interpreted in a wide sense. It follows that at least Articles 121 and 122 EPC and Rule 85a EPC are applicable to international applications at the time of their transition to the regional phase.