Friday, 12 November 2010

R 2/10 – Too Late Or Too Early

In the present case, the applicant had not approved the version of the claims which the Examining Division (ED) was ready to grant. Therefore, the application was refused under A 97(2). The applicant paid the appeal fee but did not file her statement of grounds in due time. In its decision T 1479/09, posted on December 28, 2009 (not yet published but available on Register Plus) the Board of appeal found that no appeal had been filed and ordered the reimbursement of the appeal fee. The applicant then paid the petition fee but again did not file a statement in due time. She finally sent a document, but it only reached the EPO on March 10, 2010. Most of this document has been blackened but it still can be seen that the applicant accused the EPO of abuse of office (Amtsmissbrauch) and other criminal acts.

** Translated from the German **

[1.1] If a petition for review of a decision of the Boards of appeal is based on A 112a(2)(a)to (d), it has to be filed within two months of notification of the decision of the Board of appeal. If the petition is based on A 112a(2)(e), it has to be filed within two months of the date on which the criminal act has been established (A 112a(4)).

[1.2] As follows from the file, in the present case the sole document that is to be interpreted as petition for review has been received on March 10, 2010, i.e. outside the time limit expiring on March 8, 2010, which is calculated as follows:

• December 28, 2009: the impugned decision is sent,
• January 7, 2010 : deemed date of delivery under R 126(2) and start of the period (Fristbeginn) under R 131(1),
• March 8, 2010 : end of the period under A 112a(4), second sentence, together with R 131 and R 134(1).

NB: March 7, 2010 is a Sunday.

Thus the petition for review is to be rejected as inadmissible under R 108(1).

[1.3] As for the time being (zur Zeit) none of the alleged criminal acts has been finally established by a court (R 105) it also has to be rejected as inadmissible under A 112a(4), third sentence.

[1.4] In its response, received on July 30, 2010, the applicant has not filed a request for re-establishment for the expired time limit under A 112a(4). The corresponding time limit under R 136(1) in fine has expired since May 10, 2010.

NB: May 8, 2010 is a Saturday.

[1.5] According to the established case law of the Boards of appeal (J 19/90, T 371/92, T 778/00) the mere payment of the appeal fee does not constitute a sufficient means for validly filing an appeal.

The same principle applies mutatis mutandis for the extraordinary remedy under A 112a.

[1.6] For these reasons the Enlarged Board in its composition under R 109(2)(a) unanimously rejects the petition for review as clearly inadmissible.

I found this decision stimulating because it made me ponder when a petition has to be filed in a situation (as here) where criminal acts are alleged.

A 112a(4) provides that such a petition “shall be filed within (innerhalb von; dans un délai de) two months of the date on which the criminal act has been established and in any event no later than five years from notification of the decision of the Board of appeal”. R 105 adds that the act has to be finally established, which, incidentally, may make it difficult or even impossible to file within the five years in countries where the courts are slow.

Is it possible to file the petition in a precautionary way before the criminal act has been finally established, so as not to miss the two month time limit ? I guess not. The wording of A 112a(4) appears to suggest otherwise, and so does the present decision, because if a precautionary filing was possible, the Board would have had to wait for five years before it could make a statement such as the one in point [1.3] of the reasons.

Still, the wording of point [1.3] is strange. When stating that “for the time being” (zur Zeit) none of the alleged criminal acts has been finally established, which moment does the Board refer to? I trust it did not mean that on the day of deliberation (November 3) no such final decision had been taken, but the wording is ambiguous and could even be understood to mean that, …

… unless, of course, the text is truncated and “zur Zeit” (at present, for the time being) was meant to read “zur Zeit der Antragstellung” (at the time of filing the petition), which I would interpret to be the time when the petition was complete, i.e. March 10.

Should you wish to download the whole decision (in German), just click here.