T 0600/18 - Paper debit order, no RE

Key points

• The appellant filed a Notice of appeal by fax on 28.02.2018. Form 1010 was sued for the debit order. The form was signed by the in house professional representative. The debit order is invalid and a request for re-establishment was filed. 
• “The appellant submitted that, due to security considerations and the fact that it operated in the aerospace and defence sector, the EPO's online filing software was not available on its general computers but only on the machines of three paralegals responsible for online filing.”
• On the day at issue, all three paralegals were absent. Moreover, a storm was predicted for 1 March, the last day of the appeal period. Therefore, the patent attorney had himself filed the Notice of appeal of 28 February: “Since none of the regular paralegals was present and the normal way to pay the fees was thus unavailable, the patent attorney in charge of the case decided, under the pressure of the special situation, to use an alternative method of payment, by debit order form 1010.”
• The Board notes that the Notice includes the statement ‘we pay herewith the fee for appeal’. 
• The Board:  “This hints at the assumption (later acknowledged) that, when signing the Notice of Appeal, the patent attorney considered that the appeal fee had already been validly paid using form 1010. ”
• The Board recalls that “a mistake by the representative himself or herself is not normally excusable.”
• “In the present case, it seems that the failure to comply with the time limit to pay the appeal fee was caused by the mistaken belief of the representative that an outdated way to make payments was still acceptable, which was not in fact the case. Thus, at the time of leaving the office, the representative was under the impression that everything necessary to comply with the time limit had been performed. As a consequence, the correct payment was only performed when the representative's firm was made aware of the mistake.”
• The request for re-establishment is refused.

EPO Headnote

No conclusive case has been submitted with the request for re-establishment of rights that explains why an attempt was (erroneously) made to pay the appeal fee using a form that was no longer accepted at the EPO.
Article 122 EPC and the relevant case law does not excuse mistakes by the representative himself or herself that are caused by the ignorance of the latest provisions even if the representative does not normally perform the duty of paying fees himself or herself.
As he or she is the one that is expected to instruct and supervise his or her staff, he or she must always keep informed of the latest developments on how to handle the payment of fees.
As he or she is expected to remember what he or she has learned even in stressful situations it cannot be acknowledged that the mistake has happened despite all due care having been taken.
The situation (stress caused by an upcoming snow storm) cannot be equated with one where a patent attorney was incapable of taking sound decisions due to sudden serious illness or a sudden and unexpected bereavement.


EPO T 0600/18 -  link

Reasons for the Decision

1. The request for re-establishment of the right to appeal the decision of the opposition division dated 22 December 2017 is inadmissible.

1.1 The request has been submitted in writing within two months of the removal of the alleged cause of non-compliance on 2 March 2018 and both the missed appeal fee and the fee for re-establishment have been paid within this time limit.

1.2 However, the request is not admissible for the following reasons.

1.3 Rule 136(2) EPC, 1st sentence, states that the request "shall state the grounds on which it is based and shall set out the facts on which it relies".

1.4 This has been interpreted by the case law of the Boards of Appeal as implying that a conclusive case setting out and substantiating the grounds and facts on which the request relies has to be made (see Case Law of the Boards of Appeal, 9th edition, July 2019, III.E.4.4).

1.5 In the present case, however, no explanation has been given of why the Notice of Appeal filed on 28 February 2018 states "We pay herewith the fee for appeal" and why Form 1010 was submitted on paper, a method of paying that had no longer been acceptable at the European Patent Office since 1 December 2017. This hints at the assumption (later acknowledged) that, when signing the Notice of Appeal, the patent attorney considered that the appeal fee had already been validly paid using form 1010. Thus, the fact that none of the three paralegals able to submit online payments had been present on that day is of no relevance in deciding the case. The same applies to the fact that, due to severe weather conditions, neither the patent attorney nor any of the three relevant paralegals were present in the appellant's office on 1 March 2018.

1.6 Thus, the request for re-establishment does not contain a conclusive case setting out the grounds for the failure to pay the appeal fee in time. Rather, it gives an explanation of why the usual paralegals were not in a position to act. However, the present case is not one where no action has been taken at all, but rather one where the wrong action has been chosen. In this respect a conclusive case has not been submitted that explains why an attempt was (erroneously) made to pay the appeal fee using a form that was no longer accepted at the EPO.

1.7 Therefore, the situation on the day (illness of staff and upcoming storm) was merely the reason why the representative had to act himself. The failure to comply with the time limit was then caused by the representative's lack of awareness that there had been a change in the handling of payments at the European Patent Office. The request for re-establishment fails to give any explanation of the reasons for this real source of non-compliance with the time limit.

2. However, even if such an explanation had been given, as has been done later (see the letter dated 27 July 2018) the request for re-establishment would not have been allowable.

2.1 It can be taken as read that wide parts of the UK faced extremely poor weather conditions on 1 March 2018 (https://www.theguardian.com/uk-news/2018/mar/01/beast-from-east-storm-emma-uk-worst-weather-years). However, on the afternoon of 28 February 2018 the situation was not so extreme that there was an immediate need to evacuate the office or the like. The patent attorney in charge of the case was still able to perform his duties, albeit under pressure to let his staff leave early enough to get home safely.

2.2 For the reasons set out above, the cause of non-compliance with the time limit was the decision of the patent attorney to chose a payment method that was outdated at that stage.

2.3 The case law regarding isolated mistakes within a normally satisfactory system refers to systems where the representative has entrusted tasks such as the monitoring of time limits to well trained staff who operate under his or her supervision. However, as set out for instance in decisions T 1095/06, T 592/11 and R 18/13, a mistake by the representative himself or herself is not normally excusable.

2.4 In the present case the representative was forced by the circumstances to act himself, instead of his well trained and supervised staff. However, a representative acting himself or herself is expected always to be informed of the relevant procedural provisions. In the present case, it seems that the failure to comply with the time limit to pay the appeal fee was caused by the mistaken belief of the representative that an outdated way to make payments was still acceptable, which was not in fact the case. Thus, at the time of leaving the office, the representative was under the impression that everything necessary to comply with the time limit had been performed. As a consequence, the correct payment was only performed when the representative's firm was made aware of the mistake.

2.5 This mistake has been made under the stress of the situation, which might have slightly exceeded other stressful situations an attorney often has to face in the workplace. However the situation as submitted by the appellant cannot be equated with one where a patent attorney was incapable of taking sound decisions due to sudden serious illness or a sudden and unexpected bereavement, as in cases T 525/91 or T 387/11.

2.6 Article 122 EPC and the relevant case law do not excuse mistakes by the representative himself or herself that are the result of ignorance of the latest provisions, even if the representative does not normally perform the duty of paying fees himself or herself. As he or she is the person who is expected to instruct and supervise his or her staff, he or she must always keep informed of the latest developments on how to handle the payment of fees. As he or she is expected to remember what he or she has learned even in stressful situations, it cannot be accepted that the mistake has been made despite all due care having been taken.

2.7 Therefore, even if the appellant had presented its full and conclusive case within its initial request re-establishment could not have been granted.

3. Since the appeal fee has not been paid in due time, according to the reasons set out in decision G 1/18 the appeal is to be treated as not having been filed.

4. As a consequence, the appeal fee has been paid without any legal basis and is to be reimbursed.

Order

For these reasons it is decided that:

1. The request for re-establishment of rights is refused as inadmissible.

2. The appeal is deemed not to have been filed.

3. The appeal fee is to be reimbursed.