T 1570/20 - Removal of cause of non-compliance

Key points
The Board reviewing some basics about admissibility of RE requests:

• The case at hand and the issue at stake: “A request for re-establishment of rights must be filed within two months of the removal of the cause of non-compliance (Rule 136 (1) EPC). It is thus decisive when the cause of non-compliance was removed. If this occurred on 6 August 2015, when the European professional representative was informed about the loss of rights, the request for re-establishment of rights is not admissible. If it occurred on 22 August 2015, when the applicant was informed, the request is admissible.”
• “3. If a professional representative is appointed, the removal of the cause of non-compliance usually occurs on the date on which the professional representative becomes aware of the fact that a time limit has not been observed (see J 27/90, point 2.3 of the Reasons). The notification of the communication on the loss of rights to the professional representative removes the cause of non-compliance unless there are exceptional circumstances. A person other than the professional representative being responsible for the payment of fees does not constitute exceptional circumstances (see T 1588/15, point 9 of the Reasons). The removal of the cause of non-compliance is normally the actual receipt - and not the deemed notification [under Rule 126, i.e. no 10-day rule] - of the communication by the professional representative (T 2251/12, point 10 of the Reasons; T 812/04, point 2.1.1 of the Reasons).”
• “In J 1/20 it is ... also stated that, if a European professional representative is appointed, the party acts through them in all proceedings established by the Convention and notifications are made to them, which implies that removal of the cause of non-compliance occurs in principle when the authorised representative becomes aware of the loss of rights (point 2.2 of the Reasons).”
• “In the Board's view, removal of the cause of non-compliance did not require any additional knowledge by the professional representative about possible reasons for the loss of rights, such as whether the non-payment of fees was intentional or not. Rather, it was sufficient that the professional representative became aware of the fact that a time limit - namely the time limit with regard to which re-establishment of rights was requested later on - had not been complied with, which included awareness of the fact that nobody had taken care of the payment of fees.”
• The request was filed late.
• The Board, obiter it seems: “The appellant is, as any party, free to choose their representatives and advisors. They must, however, also bear the possible negative consequences of their choices and arrangements. ” (referring to a Taiwanese law firm, not to the professional representative).

T 1570/20
https://www.epo.org/law-practice/case-law-appeals/recent/t201570eu1.html

decision text omitted.