T 1995/19 - A dispute within the meaning of Rule 126(2)

Key points

• An application is refused."In the present case the applicant had appointed [at the relevant time] Ms [A], a legal practitioner qualified in Portugal, who was thus authorised to act before the EPO in the same way as a professional representative (Article 134(8) EPC)."
• There were some changes in the representative in the course of the appeal proceedings.
• The appeal fee is paid by the deadline with bank transfer, but no written Notice of appeal is filed within the 2 month period. The Notice is filed at a later time The Statement of grounds is filed in the prescribed time limit.
• "On 28 November 2019 the board issued a communication noting of loss of rights pursuant to Rule 112(1) EPC and Article 108, second sentence, EPC indicating that the appeal was deemed not to have been filed. A time limit of two months from notification of the communication was set, with the indication that the communication would become final in case of no reply."
• About 6 months later,  "On 11 June 2020 a request was filed according to Article 122(1) EPC for re-establishment of rights in respect of the time limit for filing an appeal under Article 108 EPC. "
• The one year period is complied with.
• "The request for re-establishment of rights is refused as inadmissible." because it is not filed within the two months period.
• It is not immediately evident to me why a late-filed Notice of appeal is deemed to not have been filed (G1/18) but a late-filed request for RE is inadmissible (and in the present case, should the RE fee be reimbursed?)
• The applicant disputes the moment that the two-month period started.
• The Board: "According to the case law of the Boards of Appeal, the cause of non-compliance is removed on the date on which the person responsible for the application is made aware of the fact that a time limit has not been observed (e.g. J 27/90[]). Removal is a question of fact, which occurs with the actual becoming aware of the fact that a time limit has not been observed. It is established jurisprudence of the Boards of Appeal that if a notification of the noting of the loss of rights under Rule 112(1) EPC is issued to a duly appointed professional representative, removal in principle occurs with the actual receipt of such communication (see [CLBA] III.E. 4.1.1.a)). In the event of exceptional circumstances, which cannot be blamed on either the applicant or the representative, the cause of non-compliance may persist even though the applicant's representative was informed of the loss of rights (e.g. J 16/93, points 4.3.2 and 4.3.3 of the reasons, also referred to in T 1588/15, point 5 of the reasons)."
• See also J1/20.
• "Pursuant to Rule 126(2) EPC, the communication of loss of rights is deemed to have been delivered on 8 December 2019. The board has no reason not to rely on the deemed notification of said communication, since there is no indication that it had failed to reach the appellant or reached them at a later date. Nor did the appellant maintain that this had been the case. Instead, they merely invoked, for the first time during the oral proceedings, the absence of an acknowledgement of receipt, further arguing that the EPO did not enquire whether the communication pursuant to Rule 112(1) EPC had actually been delivered.
  However, the board is not convinced that this is in itself sufficient to question the actual receipt and to give rise to a dispute within the meaning of Rule 126(2) EPC (T 247/98, point 2.6 of the reasons).
  On the contrary, by expressly referring to the communication in point 3.3.2 of the request for re-establishment of rights dated 11 June 2020, the appellant implicitly acknowledged that the delivery had actually taken place. A late receipt of the communication of loss of rights was not alleged."
• "On account of these considerations, the board concludes that the request for re-establishment in respect of the time limit for filing the notice of appeal was filed outside the two-month time limit from the removal of the cause of non-compliance set by Rule 136(1) EPC. Consequently, the request for re-establishment of rights is inadmissible. "

EPO T 1995/19

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t191995eu1.html

decision text omitted.