No. of citations: 84
The applicant filed an appeal which included a request to set the Receiving Section's decision (finding that the application is deemed withdrawn) aside and, as an auxiliary request, re-establishment of rights under Art. 122.
In the Grounds of Appeal and in a written statement made by the lady in charge of administration in his representative's office, it was stated that the representative had instructed her to pay all necessary fees and that she had interpreted Article 78 EPC as meaning that only the filing fee had to be paid within one month after filing when a PCT application designating the European Patent Office passed to the national phase.
The Board stated under points 7 and 8 of the reasons that
"7. To benefit from Article 122 EPC, a professional representative who employs assistants must be able to establish that he has used the due care required. In general, then, he should choose for the work a suitable person, properly instructed in the tasks to be performed, and he should exercise reasonable supervision over the work.
8. However, account should also be taken of the fact that by Article 134(1) EPC, the Contracting States have in principle confined representation of applicants before the European Patent Office to "professional representatives" who, by virtue of their qualification should guarantee the best possible representation. It follows that a representative cannot relieve himself of responsibility for carrying out tasks which, by reason of his qualification, fall upon him personally, such as, for example, the interpretation of laws and treaties. If he delegates such tasks to an employee and if the latter makes an error in the course of that work which results in the failure to observe a time limit, the representative cannot establish that he took all due care required by the circumstances."In the case at hand, the general task of paying all fees due within the prescribed periods given by the professional representative to the lady in charge of administration was considered "far from easy" by the Board, given that two international treaties were involved. The Board was therefore of the opinion that the professional representative could not, for the purpose of avoiding the loss of a right, establish that he took all due care required by the circumstances.
The request for re-establishment of rights was therefore not allowed.
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Headnotes I-IV:
I. When an applicant is represented by a professional representative, a request for restitutio in integrum cannot be acceded to unless the representative himself can show that he has taken the due care required of an applicant or proprietor by Article 122(1) EPC.
II. If the representative has entrusted to an assistant the performance of routine tasks such as typing dictated documents, posting letters and parcels and noting time limits the same strict standards of care are not expected of the assistant as are expected of the applicant or his representative.
III. A culpable error on the part of the assistant made in the course of carrying out routine tasks is not to be imputed to the representative if the latter has himself shown that he exercised the necessary due care in dealing with his assistant. In this respect, it is encumbent upon the representative to choose for the work a suitable person, properly instructed in the tasks to be performed, and to exercise reasonable supervision over the work.
IV. However, if the representative delegates to an assistant a task which, by virtue of his professional qualification, normally falls to him, as for example the interpretation of laws and treaties, the representative will not be able to establish that he has exercised all due care required by the circumstances.
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