One more decision on re-establishment …
The Examining Division (ED) refused the application under consideration in a written decision dated March 17, 2011.
The professional representative, who was based in London, received his instructions from a Korean law firm. He alerted the law firm by e-mail on March 24, 2011 (acknowledged on the day after), May 4, 2011 (acknowledged on May 6) and May 26, 2011 (not acknowledged).
On July 28, 2011, the law firm contacted the representative asking for particulars of the appeal, which made him realise that something had gone wrong. He then found out that the law firm had sent two e-mails on May 26 (“We will forward our instruction to you before the due date of May 27, 2011”) and on May 27, 2011. Apparently the first mail had not reached the representative’s firm at all – the second had been sent to somebody else in his office.
The applicant filed a request for re-establishment. However, the Board found that the requirement of due care had not been met:
 On the merits of the case, the Board first of all notes that the standard for re-establishment of rights under A 122 is not whether there was an intention to do something that was inadvertently omitted, but whether all due care was taken in order to carry out the omitted act. While the Board takes the view that the e-mail of 27 May – even in the absence of any attached instructions – could reasonably be interpreted as instructions to the European representative to file an appeal, no such appeal was actually filed in good time. Unless there is a re-establishment of rights, the appeal therefore has to be deemed not to have been filed and dismissed as inadmissible.
 In determining whether all due care has been taken, the Board must look not only to the acts of the appellant, but to the acts of all those persons the appellant has asked to act on its behalf, decision J 5/80. This of course applies to the authorised representative, but it also applies to non-authorised representatives instructed by the appellant, decision J 4/07.
 Nothing suggests that the authorised representative has acted other than in an appropriately circumspect and prudent manner. If any criticism can be voiced, it would be concerning the use of e-mails as a means of communication for time-sensitive information, as is further elaborated below.
 The Board is not convinced that all due care has been exercised by the Korean firm, however. The first point to be dealt with is the use of e-mails in order to transmit important and time-sensitive information. It is recalled that the Korean firm despite repeated reminders chose to send instructions to the European representative only on the last day of the appeal period, and it did so by e-mail without any follow-up telephone call, fax or requesting an acknowledgement of receipt.
In its decision T 1289/10, the Board had to deal with a similar case of re-establishment of rights due to the loss of a time limit for reasons of e-mail communication. In part [3.3] of the reasons, the Board held that
“it can be left open whether the American attorney, at such a late stage, was well-advised to use email at all to instruct the European representative to file an appeal. However if it is to be used, the potential dangers must clearly be borne in mind. Email was never meant to be an instant messaging medium and indeed email may, under normal circumstances, be delayed for several hours or even days or occasionally even get lost. Given these (well-known) facts, it would appear necessary for the sender of an urgent and important email to check whether it has actually been received in time, possibly by using a different means of communication, such as the telephone.”
Where in light of the imminent deadline in connection with a difference in time zones it is no longer possible to verify that an e-mail has indeed reached its destination, be it by telephone, from an acknowledgement of receipt, confirmation fax, etc., this problem appears to be entirely at the risk of the sender. It is of no importance in this context why the Korean firm did not act until such a late stage, be it for its own internal reasons, or be it because it could not obtain instructions from the appellant any earlier. Thus, based on the initial submissions of 26 August 2011, it cannot be established that all due care has been taken in timely instructing the authorised representative.
 Only after the summons to oral proceedings and the communication by the Board did the appellant furnish further details about the internal organisation of the Korean law firm, and the person in charge of the file. These are late-filed facts that cannot be taken into account when determining whether all due care has been taken (see decision T 257/07 [1.3]: “ the request for restitutio initially presented within the period stipulated by A122(2) failed to show that all due care had been taken. This omission cannot be subsequently remedied by the addition of further facts”). Even if the Board were to take them into account, the late-filed facts would not lead to the conclusion that all due care had been taken. The late-filed submissions add two facts to the previous case: First, that in time-sensitive cases it was customary for the Korean law firm to send a confirmation fax in addition to the e-mail, and that this should have been done for the e-mail of 27 May. Yet the person who sent the e-mail did not feel well on this day and therefore failed to send such fax. And, second, that the person having sent the e-mail was well-trained and well-supervised and working within a well-organised office.
 The Board, however, notes two issues that cast doubt on the proper organisation of the Korean law firm’s work flow. For one, apparently no contingency plans were in place in case the responsible person having to observe a time limit was absent or fell ill. It appears that no supervisor was alerted or was aware of what had actually been done (the e-mail had been sent), and what still ought to be done (the fax still had to be sent). Doubts about the proper organisation are compounded by the fact that it was only two months later that the Korean law firm enquired as to the state of the appeal even though reception of the e-mail of 27 May had never been acknowledged. For such time-sensitive information, one would have expected that lack of confirmation of receipt should have triggered an immediate alert, and would have made the Korean law firm enquire much earlier about the appeal than only after two months. Irrespective of the admissibility of these late-filed submissions, they fail to show that all due care was taken to make sure that time-sensitive information actually arrived in time, and that the responsible person(s) were supervised in a manner that allowed for proper functioning even in case of illness or absence.
 Due to the above, the Board is therefore not convinced that all due care had been exercised in meeting the deadline for the appeal, and consequently has to refuse the request for re-establishment of rights, dismiss the appeal as inadmissible and reimburse the appeal fee.
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The file wrapper can be found here.
NB: A nice French summary can be found here.