The present appeal was filed after the Examining Division had refused the application under consideration.
No statement of grounds of appeal was filed within the four-month time limit under A 108.
The Office informed the applicant on September 19, 2011, that the appeal would be rejected as inadmissible because there was no statement of grounds. The communication was received at the private practice on September 20, 2011, and signed by attorney-at-law Dr. A.
The applicant filed a request for re-establishment on November 29, 2011.
The EPO informed the applicant that this request was late-filed because the cause of non-compliance within the meaning of R 136(1) had been removed on September 20.
The applicant argued that the paralegals of the private practice had asked Dr. A to sign the acknowledgement of receipt and had entered the communication into the electronic file . Dr. A had read the file only on November 16. Therefore, it was this date that had to be taken into account when calculating the time limits under R 136(1).
The Board disagreed:
*** Translation of the German original ***
 An applicant who, in spite of all due care required by the circumstances having been taken, was unable to observe the time limit for filing the statement of grounds of appeal may have his rights re-established upon request. One of the conditions is that the request of re-establishment of rights is filed within two months of the removal of the cause of non-compliance (R 136(1)).
 According to the established case law the cause of non-compliance is removed on the day on which the competent person (i.e. the applicant or the professional representative) becomes aware or should have become aware that the time limit had been missed. The date of removal of the cause of non-compliance is a question of fact. When the applicant or the professional representative is informed by means of a communication of the EPO that a time limit has been missed, then the cause of non-compliance is removed by the receipt of the communication. The legal fiction of receipt under R 126(2) does not apply (see Case Law, 6th edition, p. 495 ff.).
 The Board is of the opinion that in the present case the professional representative was informed at the latest by the communication of the EPO dated September 19, 2011, that the time limit fof filing the statement of grounds of appeal had been missed.
 In the present case the professional representative argues that the communication was indeed received in his private practice on September 20, 2011, and that the person in charge did sign the acknowledgement of receipt, but that he had not read the communication because his assistants had entered the communication into the electronic file at once and had not submitted the communication to him. As the determination of the date of the removal of the cause of non-compliance was a question of fact, the removal of the cause of non-compliance could not have taken place on that day.
 The Board cannot endorse this argumentation. Even if the removal of the cause of non-compliance is a question of fact, this does not mean that only the actual appropriation (Kenntnisnahme) of the content of the communication is relevant. Rather, it has to be determined when the representative should have become aware of the content of the communication if he had exercised all due care. See e.g. J 24/97 [2.2] and T 1026/06 , and the references cited therein.
 The Board is of the opinion that this date is September 20, 2011, i.e. the day on which the professional representative signed the acknowledgement of receipt. The fact that the professional representative considered it not to be necessary to read or to request the document the receipt of which he acknowledged is not relevant. If the Board followed the representative’s argument, then the representative himself would be in control of determining the date of removal of the cause of non-compliance. However, this interpretation contradicts the very purpose of A 122 (cf. T 1561/05 [2.1.3-4]).
 As the request for re-establishment into the time limit for filing the statement of grounds of appeal has not been filed within two months of the removal of the cause of non-compliance, it is inadmissible. Consequently, the statement of grounds of appeal has to be considered to be late filed. As a consequence, the appeal against the decision of the Examining Division posted on January 21? 2011, is also inadmissible.
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