T 1465/07 du 09.05.2008

1. The principle of proportionality applies to limitations of the right of access to the boards of appeal, such as rules on time limits, by legislative measures or their application. This means that those measures or their application must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures or ways of applying them recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (See point 13 of the reasons.)

2. As for the application of Article 108 EPC 1973 in conjunction with Article 122 EPC 1973 the principle of proportionality has the consequence that the interpretation of those provisions must not impose means that are not appropriate, necessary or disproportionate in relation to the aim sought to be achieved, namely legal certainty and the proper administration of justice by avoiding any discrimination or arbitrary treatment. Correspondingly, the conditions for granting restoration, in particular the requirement of due care, must not be interpreted in an excessive manner that unreasonably restricts access to the board and thus prevents the board from deciding on the merits of the case. This is the balance between legal certainty and proper administration of justice on one hand and substantive justice on the other, which has been struck under the EPC in this context. It follows that the principle of proportionality must always be applied in connection with the interpretation of those conditions, which determine whether or not an application for re-establishment can be allowed. It is not permissible to consider the result of a procedural irregularity, such as the loss of a patent or patent application, separately in relation to the kind of procedural irregularity and allow the application because of the severity of the result and a minor degree of irregularity, even though the conditions of Article 122 EPC are not met, no matter whether a case is "borderline" or not. (See point 15 of the reasons.)

3. The number of days by which a time limit had been missed is irrelevant for deciding whether all due care within the meaning of Article 122(1) EPC 1973 was applied or not as that provision does not leave any room for the application of the principle of proportionality in this respect. (See point 16 of the reasons.)

4. The effective cross check required in a large firm where a large number of dates have to be monitored at any given time must be independent, i.e. redundant or failsafe. (See point 19 of the reasons.)