In most cases the "cause of non-compliance with the time limit" involves some error in the carrying-out of the party's intention to comply with the time limit (J 29/86, OJ 1988, 84; regarding other possible causes of non-compliance see also in this chapter III.E.4.2. "Inability to observe a time limit").
The removal of the cause of non-compliance occurs on the date on which the person responsible for the application (the patent applicant or his professional representative) is made aware of the fact that a time limit has not been observed (see T 191/82 date: 1985-04-16, OJ 1985, 189; T 287/84, OJ 1985, 333; J 29/86, OJ 1988, 84; J 27/88, J 27/90, OJ 1993, 422).
(i) Date the error ought to have been noticed is decisive
The decisive factor is the time when the person concerned ought to have noticed the error if he had taken all due care (established case law, see e.g. J 27/88, J 5/94, T 315/90, T 840/94, J 24/97, J 27/01, T 1026/06, T 493/08, J 1/13, T 1588/15).
In T 261/07, relying on T 949/94 of 24 March 1995 date: 1995-03-24, the patentee argued that it had only become aware of an oversight once it was established that the decision of the opposition division had indeed been received. The board however took the view that the cause of non-compliance was removed as soon as the patentee noticed via a file inspection "that something was amiss" (see J 9/86, J 17/89, T 191/82 date: 1985-04-16
In J 21/10 the Legal Board held that, in cases of a request for re-establishment of rights, the existence of some factor having a causal nexus with the failure to observe the deadline in question was a procedural requirement and, as such, a prerequisite for any decision on the merits, and therefore had to be verified when examining admissibility. The same applied where such causal factor was denied, as in the case in hand, on legal grounds because the error leading to the failure to perform a procedural act subject to a deadline ought to have been discovered by a person exercising due care. Where the cause asserted in a request for re-establishment of rights consisted of an error but could be deemed to have been removed before expiry of the non-observed deadline because the error was attributable to a breach of the duty of care imputable to a responsible party, such removal resulted in the inadmissibility of the request.
In T 1486/11 the appeal fee was not paid with the notice of appeal; the authorisation to debit the appeal fee from the representative's account was filed only with the statement of grounds of appeal. The board rejected the appellant's argument that the two-month time limit started with the reception of the communication noting the loss of rights. The start of the two-month period was the moment at which the appellant – exercising the due care stipulated by Art. 122(1) EPC – was no longer prevented from performing the payment of the appeal fee. The board held that had all due care been exercised in the case in hand, the payment of the appeal fee could not have been made without its belatedness being noticed.
In T 198/16 the board stated that the current practice of applying the due-care requirement in the context of removal of the cause of non-compliance with a period within the meaning of R. 136(1) EPC could well be seen as extending the meaning of the due-care requirement in a way that enlarges the scope of the essentially substantive criterion by adding to it the function of an extraordinary preliminary admissibility/applicability hurdle. The board stated that this approach to the "removal" criterion, which could not be based on the letter of the law, was therefore doubtful. The board left open the question as to the approach to be followed.
(ii) Removal not necessarily date of receipt of R. 112(1) EPC communication
In J 27/90 (OJ 1993, 422), the Legal Board stated that the removal of the cause of non-compliance was a matter of fact which had to be determined in the individual circumstances of each case (see also J 7/82, OJ 1982, 391; J 16/93; T 900/90; T 832/99; J 21/10; T 387/11; T 1588/15). In the case of an error of facts the removal occurs on the date on which any person responsible for a patent application should have discovered the error made. This is not necessarily the date of receipt of the communication under R. 112(1) EPC (R. 69(1) EPC 1973) (see T 315/90, J 21/10). If, however, such a communication has duly been served, it may, in the absence of circumstances to the contrary, be assumed that the removal was effected by this communication (see also J 7/82, OJ 1982, 391; J 29/86, OJ 1988, 84; T 900/90; J 27/90; J 16/93; T 428/98, OJ 2001, 494; T 832/99; J 11/03).
In J 29/86 (OJ 1988, 84) the Legal Board assumed a later date in view of the special circumstances of the case. In T 900/90 the board emphasised that in all cases in which the receipt of the notification under R. 69(1) EPC 1973 could be regarded as the removal of the cause of non-compliance it had to be clearly established that neither the representative nor the applicant was aware that the application had been deemed to be withdrawn before the receipt of that notification. Other cases in which the boards agreed to a date different from that of the receipt of the communication under R. 69(1) EPC 1973 include J 16/93, J 22/97, J 7/99, J 19/04, T 24/04 and T 170/04.
In J 27/01 the Legal Board decided that persons absent from their residence for a lengthy period are obliged to ensure that legally important documents are forwarded to them so that they can note their contents within a time limit appropriate to the technology available in the particular case. The obstacle to completion of the omitted act was therefore overcome on the date on which the individual applicant could have noted the content of the EPO communication under R. 69(1) EPC 1973 if he had had it duly forwarded to him.
In J 7/16 the Legal Board held that the relevant cause of non-compliance with the two-month time limit of R. 136(1) EPC lay in the fact that the former representative was not in a position to act properly in the proceedings due to his state of health. Thus, the date of removal of the cause of non-compliance could only be the date on which the applicant had inspected the file and realised that its former representative had not acted properly.
(iii) Time limit not observed due to an error of law
In T 493/08 the board considered that, where a time limit was not observed due to an error of law, the removal of the cause of non-compliance with that time limit occurs on the date on which the applicant actually became aware of the error of law. The board noted that, in an apparent contrast to this view, in T 1026/06 the date when the applicant should have made investigations was considered to be critical, even though the applicant apparently failed to undertake such investigations as a consequence of what was considered to be an error of law.