T 0413/91 (Restitutio/BÜHLER) of 25.6.1992

European Case Law Identifier: ECLI:EP:BA:1992:T041391.19920625
Date of decision: 25 June 1992
Case number: T 0413/91
Application number: 83107626.0
IPC class: B01J 8/40
Language of proceedings: EN
Download and more information:
Decision text in EN (PDF, 220 KB)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Process for fluidizing
Opponent name: BÜHLER GmbH
Board: 3.3.02
Headnote: -
Relevant legal provisions:
European Patent Convention 1973 Art 122
Keywords: Admissibility of appeal (no)
Re-establishment of rights (no) - unable to observe a time limit (no)


Cited decisions:
G 0001/86
Citing decisions:
J 0002/02
J 0021/10
J 0014/16
J 0001/20
T 0903/94
T 0148/96
T 1054/03
T 1026/06
T 0493/08
T 1962/08
T 0836/09
T 0592/11
T 0578/14
T 2023/14
T 2331/14
T 0198/16
T 1823/16
T 1060/19

Summary of Facts and Submissions

I. By a decision of 27 March 1991, the Opposition Division maintained European patent No. 100 553 in amended form. The patent was based on European patent application No. 83 107 626.0 filed on 2 August 1983. The mention of grant was published on 10 February 1988.

II. The Appellants/Opponents on 27 May 1991 filed a Notice of Appeal against the above decision. The appeal fee was paid on the same date.

III. On 9 April 1992, the Registrar of the Boards of Appeal issued a communication to the Appellants pursuant to Article 108 and Rule 65(1) EPC, drawing attention to the fact that a written statement setting out the grounds of appeal appeared not to have been filed within the time limit laid down in Article 108 EPC.

In response to this communication, the Appellants on 20 May 1992 submitted a request for restitutio in integrum, a Statement of Grounds and paid the required fee.

As grounds for the request for restitutio in integrum the following was submitted by the Appellants:

Shortly before the decision of 27 March 1991 by the Opposition Division, the patentees declared themselves prepared to give the opponents a right of co-use of the invention, under certain conditions. For reasons not understood by the Appellants, such an agreement was however never reached. The Appellants had neither seen any concrete steps by the patentees to have the patent lapse as they had been led to believe. This caused the Appellants to use the communication of 9 April 1992 to request restitutio in integrum.

Reasons for the Decision

1. The request for restitutio in integrum is admissible.

2. The Notice of Appeal and the appeal fee were submitted within the stipulated time limit under Article 108 EPC. As however the Statement of Grounds was submitted out of time, the question whether or not the appeal is admissible depends on the outcome of the request for restitutio in integrum.

3. Article 122 EPC on restitutio in integrum contains two fundamental requirements: The applicant or proprietor (or as in the present case the opponent, cf. G 1/86, OJ EPO 1987, 447) must establish that he was 1) unable to observe a time limit, 2) in spite of all due care required by the circumstances having been taken.

4. The Appellants' reasons for not filing any Statement of Grounds are that they had expected an agreement with the proprietor, which however did not come about.

The first condition under Article 122 EPC explicitly states that the party in question must have been unable to observe the time limit. The word "unable" (in the French version "n'a pas eté en mesure", and German version "verhindert worden ist") implies an objective fact or obstacle preventing the required action. Such an obstacle could e.g. consist of a wrong date inadvertently being entered into a monitoring system, or an outside agency influencing the observance of the time limit (for example a delay in delivery service). Only when such a fact made the party unable to observe the time limit would the circumstances of the case be examined as to the second condition "in spite of all due care".

Restitutio in integrum is an extraordinary means of judicial remedy. It offers no choice to a party as a substitute for the proper action to be taken, nor does it imply any right to have the fatal effect of an intentional step cancelled, even if this step later on proved to have been a mistake. A party thus cannot deliberately abstain from fulfilling the conditions for a valid appeal, and then achieve an appellate review through the back door of a restitutio request. The party in question must have been objectively unable to observe the time limit.

The Appellants of the present case however chose not to file any statement of grounds. The reason given, that the counterparty was not behaving as expected, is irrelevant, as it would not have objectively prevented the Appellant from filing file a statement of grounds within the time limit given by the EPC. Thus, the Appellants have not fulfilled the first condition under Article 122 EPC of being unable to observe a time limit.

The request for restitutio is therefore refused.

5. This decision has been taken without any prior communication from the Board, having regard to the nature of the ground referred to by the Appellants. No subsequent evidence or elaboration on this ground could heal the above deficiency.

6. As the Statement of Grounds, given the above refusal, has to be considered as not filed on time, the appeal must be declared inadmissible.


For these reasons, it is decided that:

1. The request for restitutio in integrum is refused.

2. The appeal is inadmissible.

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