J 0012/87 (Re-establishment of rights) du 25.03.1988

1. If the national fee, search fee and designation fees due in respect of a Euro-PCT application are not paid within the basic time limit laid down in Rule 104b(1) EPC (i.e within one month after the expiry of the time limit laid down in Article 22(1), (2) or 39(1)(a) PCT), Rule 85a EPC and Article 122 EPC are potentially immediately available as alternative remedies against the permanent loss of rights.

2. If the required fees and the surcharge are paid unconditionally within the period of grace provided by Rule 85a EPC, the payment is immediately effective to cure the loss of rights and thereafter there are no lost rights which could be re-established under Article 122 EPC.

3. Accordingly, an applicant who wishes to keep open his option to proceed under Article 122 EPC, should file an application under that Article before he makes payment under Rule 85a EPC and/or notify the EPO at the time of payment that the payment under the Rule is a supplementary measure and that he would prefer re-establishment under Article 122 EPC.