EPO express
rendered 03 March 1982
J005/80 accepts that when a professional representative entrusts a carefully selected, well trained and adequately supervised assistent with a routine task and this assistant fails exceptionally to carry out this routine taks this failure of the assistant cannot be hold against a professional representative. However, this decision introduces another requirement. It is not sufficient to describe the circumstances such that it was possible that the failure of the assistant led tot he missed time limit. The reasons given by the applicant to be re-established into a missed deadline must set out and substantiate the facts that the failure of the assistant almost enevitable caused missing the time limit.
In a decision of the board of appeal the decision will most of the time speak of the appellant which is the person, or company in which name an appeal has been lodged. To make the decision more comprehensive this annotated summary uses the term “applicant” for the applicant of the European patent application also for the time after the applicant had lodged the appeal.
The appeal T 0013-82 contests the decision of the Examining Division of the European Patent Office dated 17 July 1981 refusing application No. 79 xxx The applicant filed the appeal and paid the fee for appeal within the two months time limit. The notice of appeal however contains nothing that could be regarded as a Statement of Grounds but simply announces that the Statement of Grounds will be filed later.
The Statement of Grounds was only received on 11 February 1982 after the applicant's attention had been drawn to its absence in a telephone call from the EPO on 21 January 1982. A re-establishment of rights was requested and the corresponding fee was paid.
In support of the application for re-establishment of rights it was pointed out that when the appeal was filed a reliable assistant was given express and emphatic instructions to re-submit the dossier in time for the Statement of Grounds to be prepared. The dossier was not re-submitted as instructed, unaccountably in view of the triple time-limit control system operated in the firm, comprising a centralised date card, a decentralised duplicate of the card kept in the relevant secretariat and entry in the assistant's diary. It was no longer possible to trace the events that led to the time limit being overstepped but it was suspected that the assistant forgot to make the entry in his diary. In response to a query from the rapporteur, it was added that the assistant had probably returned the time-limit card as redundant once the notice of appeal had been filed. In a further letter, the Board pointed out that according to the facts as stated the control system described (date cards plus diary) had obviously not been used. The applicant reiterated that the assistant had been given the necessary express instructions but that apart from that it was no longer possible to establish what had happened.
The application for re-establishment of rights complied with the prescribed formal requirements.
The application would be duly supported only if it was clear from the facts set out and substantiated that the applicant had taken all due care required by the circumstances to observe the time limit. Then he would not be held liable for a wrongful act or omission on the part of an assistant under the conditions set out in Decision J 05/80.
However, first of all a conclusive case must be made, setting out and substantiating the facts, for the probability - at least - that a wrongful act or omission on the part of an assistant was the cause of the failure to meet the time limit: the mere possibility is not sufficient to exculpate the applicant.
The Board's conclusion, as conveyed to the applicant, is that on the basis of the facts presented the available means under the time-limit control system (date cards and diary) were not used at all. Accordingly, a deficiency in the instructions given appears no less probable than a wrongful act or omission on the part of the assistant. As the assistant did not use any of the means at his disposal, deficient instructions would seem the likelier explanation. Since, therefore, a conclusive and substantiated case that would persuade the Board that the applicant took all due care required by the circumstances has not been made, the application for re- establishment of rights cannot be granted.
For these reasons, it is decided that:
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(c) EPO express 2020