T 1823/16 - (I) How many RE fees?

Key points

• The applicant failed to file both the Notice of appeal and the Statement of grounds in time and requested in RE for both. The isolated mistake was a failure to docket the refusal decision. One fee for RE was paid. Is that correct.
•  The Board decides that one fee as enough in this case.  
• " Only one re-establishment fee was paid, although the time limit for filing the notice and the time limit for filing the statement of grounds of appeal were missed. However, the non-observance of both time limits is intrinsically linked to the same hindrance. Both periods are triggered by the same event, i.e. the notification of the decision, and the hindrance to complying with them is based on one unitary factual basis i.e. that the time limits were not noted in the monitoring system." 

• I highlight this decision, because the GL E-VIII, 3.1.3. were changed in 2017 by adding: "In such cases, the number of unobserved time limits, each resulting in the application being deemed withdrawn and requiring a request for further processing, determines the number of requests for re-establishment and the corresponding number of fees for re-establishment." The GL were also amended by adding an example that if the time limit for entry into the European phase (Rule 159) with FP is missed, 5 FP fees are to be paid and 5 RE-fees (for filing the translation, paying the filing fee, the designation fee, the search fee, and the request for examination + the examination fee. I find that reasoning of the Guidelines not very convincing. This decision contradicts it, it in my view, at least for the case that the time limit(s) (of R159 with FP) are missed due to a single hindrance / due to  one unitary factual basis  (e.g. a single car accident). 

EPO T 1823/16 - link

Summary of Facts and Submissions

I. This appeal is against the decision of the examining division refusing European patent application No. 09779319.4 pursuant to Article 97(2) EPC. The decision was handed over to the postal service provider on 10 December 2015. Both the notice of appeal and the statement setting out the grounds of appeal were filed on 28 June 2016, together with a request for re-establishment of rights. The fee for re-establishment and the appeal fee were paid on the same day.

[...]

Reasons for the Decision

1. According to Article 108 EPC, the notice of appeal shall be filed within two months, and the statement setting out the grounds of appeal shall be filed within four months of notification of the decision. These time limits expired on 22 February 2016 and 20 April 2016, respectively (Rules 126(2), 131(2) and (4), 134(1) EPC). Since, both the notice of appeal and the statement setting out the grounds of appeal were only received on 28 June 2016 and thus outside the relevant time limits, the appeal is inadmissible (Rule 101(1) EPC), unless the request for re-establishment of rights can be allowed.

2. According to Rule 136(1) EPC, a request for re-establishment of rights must be filed within two months of the removal of the cause of non-compliance. The cause of non-compliance was removed on 2 May 2016, when the appellant's representatives received a communication from the EPO regarding the refund of the 8th renewal fee. The request for re-establishment of rights was filed on 28 June 2016. The fee for re-establishment was was paid on the same day.

Only one re-establishment fee was paid, although the time limit for filing the notice and the time limit for filing the statement of grounds of appeal were missed. However, the non-observance of both time limits is intrinsically linked to the same hindrance. Both periods are triggered by the same event, i.e. the notification of the decision, and the hindrance to complying with them is based on one unitary factual basis i.e. that the time limits were not noted in the monitoring system. Re-establishment in respect of both periods has to be examined together and the result will inevitably be the same. In this situation, the Board considers one re-establishment fee to be sufficient (following the approach taken in T 832/99 of 17 September 2004 and J 17/16 of 28 June 2017). The omitted acts, i.e. filing the notice and the grounds of appeal and paying the appeal fee were completed at the same time.

Thus the request for re-establishment of rights is admissible.