This is an appeal against the decision of the Examining Division, dated February 28, 2011, to refuse the application under consideration.
A notice of appeal was received by letter dated March 23, 2011.
The statement of grounds of appeal was filed by a letter dated May 19, 2011. Under cover of the same letter was an authorisation to debit the appeal fee from the representative’s account.
A communication noting a loss of rights pursuant to R 112(1) was issued on July 21, 2011, stating that the appeal fee had been paid out of time and that the appeal was accordingly deemed not to have been filed (A 108, second sentence,).
The appellant then filed a request for re-establishment of rights under A 122 and paid the corresponding fee.
The appellant did not contest that the appeal fee was paid late but argued that this was attributable to a defective smart card which was used in the on-line filing process to authorise and to debit fees from the attorney’s deposit account at the EPO.
When the representative’s secretary later (March 24, 2011) filed the notice of appeal by facsimile, she had unfortunately omitted also to file an order to debit the appeal fee from the account at the EPO. Such an oversight, which constituted a single mistake in a well-functioning system, could only be attributed to the “human factor”.
The representative had become aware of the omitted payment only after his return from his summer holiday, on August 15, 2011, when a communication from the EPO dated July 25, 2011 in respect of the loss of rights, first came to his attention. Therefore, the request for re-establishment of rights was filed in good time.
 The late filing of the appeal fee was not disputed by the appellant.
As regards the failure to meet the time limit for filing a request for re-establishment of rights, the following is to be noted:
[1.1] The payment of the appeal fee had to be made on 7 April 2011, but was only made on 19 May 2011 along with the filing of the statement of grounds of appeal. It follows that the payment of the appeal fee was out of time and that the appellant must have been aware of the belated payment. This was not contested by the appellant.
[1.2] The communication noting the loss of rights was dated 21 July 2011. The appellant received this communication on 25 July 2011.
[1.3] R 136(1) defines inter alia a general period for requesting re-establishment, which is two months from the removal of the cause of non-compliance with the period.
The two-month period of R 136(1) is triggered by the removal of the cause of non-compliance, i.e. by the event which causes the party to become aware that a loss of rights had occurred.
[1.4] R 136(1) lays down that a request for re-establishment must include the filing of a written request and the payment of a fee. R 136(2) adds the requirement of completion of the omitted act. In the present case, the omitted act (i.e. non-payment of the appeal fee) was already completed on 19 May 2011 by payment of the appeal fee.
[1.5] It follows that in this case the two-month limit for the request for re- establishment expired on 19 July 2011 (19 May 2011 + 2 months).
[1.6] Apparently, the appellant considered the starting point of the two-month period pursuant to R 136(1), first sentence, to be either the day on which the representative personally took note of the content of the communication from the EPO concerning the loss of rights (15 August 2011) or, in any event, the date on which this communication arrived at his office (25 July 2011).
However, the start of the two-month period is the moment at which the appellant – exercising the due care stipulated by A 122(1) – was no longer prevented from performing the payment of the appeal fee (see M. Singer / D. Stauder (Editors), “Europäisches Patentübereinkommen: Kommentar”, 3rd edition, published by Carl Heymanns KG, Köln, Germany, A 122, note 107). In the present case, the payment of the appeal fee was made on 19 May 2011. Had all due care been exercised, this payment could not have been made without its belatedness being noticed.
[1.7] Accordingly, the two-month time limit for filing a request for re-establishment of rights expired on 19 July 2011 (19 May 2011 + 2 months). The period for paying the fee for re-establishment of rights expired on the same date.
[1.8] Since both the payment of the fee for re-establishment of rights and the request for re-establishment of rights were only made on 15 September 2011, both acts were performed after the expiry of the prescribed time period. The request for re -establishment of rights is therefore deemed not to have been filed (R 136(1), last sentence).
 It follows from point 1.8 above that the loss of rights pursuant to R 112(1), as communicated to the appellant by official letter dated 21 July 2011, cannot be remedied by way of restitutio in integrum. Consequently, pursuant to A 108, second sentence, the appeal is also deemed not to have been filed.
 As the appeal had not been validly filed, the appeal fee and the fee for re-establishment of rights have to be reimbursed.
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