J 0002/86 - Isolated mistake / resitutio - #60

Citation rank: 60
No. of citations: 83

J 2/86 deals with re-establishment of rights under Art. 122 EPC (restitutio in integrum). The Summary of Facts and Submissions, the Reasons and Order are the same as in J 3/86, which was already mentioned in this blog here.

In the underlying case the applicant failed to pay the accumulated third and fourth annuity fees for two divisional applicaitons, which were due upon filing, but could be paid within 4 months of the filing date (now Art. 86, Rule 51(3) and (2)). The applicant was informed that the third and fourth annuity fees could still be validly paid within 6 months of the due date, provided that a surcharge is paid.

The representative of the applicant then also failed to pay the 5th year annuitys of the two divisional, which became due some time later. He was again informed by the EPO that the 5th year annuity could still be validly paid within 6 months of the due date, provided that a surcharge is paid (R. 53(2) EPC).

The applicant paid the 5th year annuities within the 6 months time limit. Payment of the third and fourth annuity fees was made, however, only 3 respectively 1 days too late.

The respresentative filed a request for re-establishment of rights according to Art. 122 EPC. In the statement setting out the facts he stated that the failure to pay the fees in time was "because of the circumstances arising from the arrangements for the payment of maintenance fees" between the representative's office and the appellant. The arrangement was that the representative was responsible for filing and prosecution of European applications, and the Appellant was responsible for payment of maintenance fees. However, the arrangement between applicant an representative had recently been changed, and those changes led to an exceptional situtation in which the payment of the 3rd and 4th annuities was not made in due time (see link below for details).

The Board evaluated the arguments and facts and stated:

"The Board recognises that Article 122 EPC is intended to ensure that in appropriate cases the loss of substantive rights does not result from an isolated procedural mistake within a normally satisfactory system. Thus, in the Board's view, in spite of all due care required by the circumstances having been taken by the Appellant, the Appellant was unable to pay the third and fourth year renewal fees for these two divisional applications within the time limits required by the EPC (because of such special circumstances)." (point 4 of the reasons)

The criterion that - in restitutio cases - the loss of a substantive right should "not result from an insolated mistake within a normally satisfactory system" has from then on been applied in many restitutio cases (J 28/92, J 13/93, J 13/07, J 11/09, J 12/09, T 381/93, to name a few).

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Headnote:

Article 122 EPC is intended to ensure that in appropriate cases the loss of substantive rights does not result from an isolated procedural mistake within a normally satisfactory system.

The full text of the decision can be accessed here.