Monday, 24 June 2013

T 744/11 – Three Minutes

This is an examination appeal.

The statement setting out the grounds of appeal was received in electronic form three minutes after expiry of the four-month time limit for filing the grounds of appeal.

The registrar of the Board informed the appellant of the late receipt of the statement setting out the grounds of appeal.

The appellant responded by requesting the Board to decide under R 112(2) that the statement of grounds of appeal was filed within the relevant time limit or, in the alternative, to grant re-establishment of rights under A 122 in respect of the non-observance of the time limit for filing the statement of grounds of appeal.

[1.1] The decision refusing the European patent application was notified by registered letter on 17 November 2010 and thus was deemed to have been received 10 days later on 27 November 2010 (R 126(2)). The four-month time limit for filing the statement of grounds of appeal, under A 108, would have expired on 27 March 2011. However, this day was a Sunday, so the time limit expired at midnight on the following day (R 134(1)). The appellant filed his statement of grounds electronically. The receipt for this document was generated at 00.03 hours on 29 March 2011, i.e. three minutes after the expiry of the time limit for filing the grounds of appeal. This should normally result in the appeal being rejected as inadmissible (R 101(1)).

[1.2] The representative of the appellant argued that his office was based in Cambridge and that, since the clocks in the United Kingdom were one hour behind Central European Time (CET), he had sent the statement of grounds on 28 March 2011, which was within the time limit fixed by A108. According to Article 9(3) of the “Decision of the President of the EPO dated 26 February 2009 concerning the electronic filing of documents” (OJ 3/2009, 182) the date of receipt accorded to documents electronically filed within the EPO under R 2 should be the date on which they were received at the EPO. This wording was broad and covered, at the very least, the date in any EPC state on which the documents were received at the EPO. The time marked on the receipt was 00.03 Central European Time (CET) 29 March 2011. The United Kingdom, however, was situated in a time zone one hour behind CET, and so the time and date when the document was received at the EPO was 23.03 British Summer Time (BST) on the 28 March 2011.

The Board cannot accept this argument for the simple reason that the relevant time for the purpose of the law is the time at the EPO (i.e. the time at Munich or The Hague) and not the time in the United Kingdom. Therefore, the appellant missed the time limit for filing the grounds of appeal (A 108) which normally results in the appeal being rejected as inadmissible (R 101(1)) and, thus, in the loss of a means of redress.

[1.3] According to A 122(1), the applicant for a European patent who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit vis-à-vis the EPO shall, upon application, have his rights re-established if the non-observance in question has the direct consequence, by virtue of the EPC, of causing the loss of a means of redress.

[1.3.1] The Board considers the appellant’s request for re-establishment of rights as regards the time limit for filing the notice appeal allowable (A 122(4)), in particular because the appellant has shown that the non-observance of the time limit was not caused by lack of due care but rather by a justifiable human error of the representative. However, it is not necessary to go into more details because the appeal, though admissible, is not allowable for the reasons set out herein below. […]

The requests on file were found to lack clarity and the appeal was dismissed.

Re-establishment is not always obtained that easily, is it?

Should you wish to download the whole decision, just click here.

The file wrapper can be found here.


Anonymous said...

How can all due care have been observed by a representative that is not aware of the difference between CET and BST?
Lax justice is also no justice.

Anonymous said...

Oh, I don't think we should be too harsh on the board for taking the easy way out on this one ...

Anonymous said...

Was the appeal declared admissible just so that the BoA could pocket the fee?

Anonymous said...

It could even be a matter of "procedural economy":

Perhaps it took the board less effort to argue that the appeal is not allowable than it would have taken it to argue inadmissability.

george said...

I do not think it is about the money. There are some decisions where the Boards consider allowability before admissibility, for the sake of commodity, the lack of allowability being quite easy to demonstrate. The same might have happened here. Nevertheless, this way of proceeding is regrettable, because it departs from the strict requirements for re-establishment which the case law has established.

Anonymous said...

Have I missed something here, in it's explanation of 'the circumstances surrounding the non-observance of the time limit', the representative says that CET had moved from +1 hr to +2 hrs on the day before the deadline, and the EPO website still indicated that the time in Germany was +1hr.

However, the appeal was filed at 23.03 BST, therefore the change in CET, and the fact that the EPO website had not been updated to reflect this, are irrelevant, surely?

Even without the CET time change the appeal was filed out of time...

Anonymous said...

can't be about the money... had the board decided that the appeal was not admissible, it would not have refunded the appeal fee. Probably the board did not consider necessary to explain in detail why 122 was granted, since the appeal was anyway unfounded. Better loosing the patent for substantial reasons than for formal reasons, I guess...