T 387/11 – Grieving

It does not happen so often that the Boards grant requests for re-establishment, so I take the opportunity to present such a case.

The applicant’s representative had missed the time limit for filing the statement of grounds of appeal after having filed an appeal against the refusal of the application under consideration.

The factual situation can be summarised as follows:

The Examining Division had sent its decision to refuse the application on September 8, 2010. The communication was received on September 17, so the time limits for filing the appeal and the statement of grounds expired on November 18, 2010 and January 18, 2011, respectively.

The representative was the only representative working in this law firm. He had one secretary, Mrs W. She entered November 17 and January 17 as the relevant dates in the deadline calendar.

The appeal was filed on November 9. On November 22, Mrs W. left the law firm.

On December 22, 2010, the representative’s mother died unexpectedly. His father, aged 82, was unable to cope with this situation and so the representative – who was the only child of the deceased – had to take over the organisation of the funeral, which took place on January 3, 2011.

On the day before, a new secretary, Mrs M., had started working for the law firm. She had worked for a law firm before but was not familiar with patent-related time limits right away.

As a consequence of his loss and the stress related to the organisation of the funeral, the representative suffered major psychological stress and was put on sick leave from January 5 to January 7.

The representative explained in his request for re-establishment that he had tried to resume his professional duties after this sick leave because he thought that this would help him in the grieving process. He had thought that he could cope with these duties but had overestimated his forces and was unable to maintain regular operation of the law firm. He had an agreement with another patent attorney who would take over in case of illness, but as he was unable to admit that he needed help, he did not make use of this option.

So he missed the time limit for filing the statement of grounds. It was only during an internal review of the organisation of his law firm on January 26, 2011, that he realised that the time limit had been missed. He filed the request for re-establishment on February 24.

The Board granted the request:

*** Translation of the German original ***

Admissibility of the request for re-establishment

[1.1] In its written submission dated February 24, 2011, the appellant has requested re-establishment into the time limit for filing the statement of grounds of appeal.

Pursuant to A 122(2), first sentence, and R 136(1), first sentence, a request for re-establishment has to be filed within two months of the removal of the cause of non-compliance. As can be seen from the document dated February 24, 2011, the representative of the appellant noted for the first time on January 26, 2011, that he had missed the time limit on that day.

According to the established case law of the Boards of appeal, the question as to when the cause of non-compliance has been removed is a question of fact (Tatsachenfrage). What is decisive is until when the representative was actually hindered from performing the action he had omitted (established case law following J 7/82).

Therefore, [the Board] considers that the cause of non-compliance was removed on January 26, 2011. The request for re-establishment received on February 26, 2011 was, consequently, received in due time. As the request was substantiated with the documents – containing the evidence – received on February 26, 2011, the statement of grounds of appeal was also received on February 26, 2011, and the fee for re-establishment fully paid on March 16, 2011, the requirements of A 122(2), first sentence, and R 136(1), first and third sentences, as well as R 136(2) have also been fulfilled.

Therefore, the request for re-establishment is admissible.

Allowability of the request for re-establishment

[1.2] Pursuant to A 122(1) the request may be granted if the time limit has been missed in spite of all due care required by the circumstances having been taken. By filing a medical statement (ärztliche Stellungnahme) the representative of the appellant has provided evidence that he had suffered considerable psychological stress at the end of December 2010 and in January 2011, subsequent to the sudden death of his mother. Moreover, the representative was the sole person in charge of monitoring dates and time limits after the sole assistant in charge of monitoring time limits and carrying out other clerical duties had left [the law firm] and during the period of training (Einarbeitung) of a new assistant. This situation lasted from the end of November 2010 until January 2011, i.e. during the very period in which the four-month time limit for filing the statement of grounds of appeal expired on January 18, 2011.

[The representative] credibly explained that the sudden and unpredictable bereavement had made him suffer massive psychological stress during this period, which led to the time limit for filing the statement of grounds being missed. In view of the credible presentation of the circumstances the Board is convinced that the representative of the appellant found himself in an extraordinary situation that hindered him from paying attention to the time limit and to make arrangements for meeting it.

Moreover, the representative has explained that he was head of a one-man law firm and had made arrangements for ensuring that in normal situations time limits would be met in case of sickness, because a colleague would act on his behalf. In this respect the representative has made organisational arrangements that satisfy the requirement of “all due care”.

Therefore, the request of the representative of the appellant for re-establishment into the time limit for filing the statement of grounds of appeal is granted.

The appeal was then dismissed on substantive grounds.

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