3.3. Determining legal incapacity of the applicant or patent proprietor for the purpose of Rule 142(1)(a) EPC

In J ../87 (=J 903/87, OJ 1988, 177) the board ruled that a brief medical certificate attesting that the applicant had been in a state of physical and mental exhaustion and depression, was not sufficient to establish incapacity within the meaning of R. 90(1)(a) EPC 1973 since the certificate said nothing about the seriousness and duration of this condition. Cf. T 1680/13.

In J 49/92 the Legal Board had no evidence – such as a medical certificate – to suggest that the applicant's health, according to German legal practice, was in such a condition as to exclude the rational exercising of his will, since he had still managed to transfer the fees for the application, even if they had been sent by mistake to the German Patent Office instead of the EPO.

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