T 0231/23 du 08.12.2023

Re-establishment of rights - time limit for filing request for re-establishment
Re-establishment of rights - two months of the removal of the cause of non-compliance (no)

1.) The removal of the cause of non-compliance with a time limit under Rule 136(1) EPC occurs, as a rule, on the date on which the person responsible for the application vis-à-vis the EPO becomes aware of the fact that the time limit has not been observed, for example by receipt of a loss of rights communication under Rule 112(1) EPC. If a professional representative is appointed, the representative is the person responsible for the application vis-a-vis the EPO (Reasons 3 and 4).
2.) Regarding time limits for the payment of fees, an appointed professional representative remains the person responsible for the application vis-a-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 is responsible for the payment of fees. Hence, also when a time limit for the payment of fees was missed, removal of the cause of non-compliance in principle occurs on the date on which an appointed professional representative receives the corresponding loss of rights communication (Reasons 5). The removal of the cause of non-compliance does 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 (Reasons 7).