T 1874/23 - (I) So many questions to ask (re-establishment)

Key points

• This decision concerns a request for re-establishment for the late filing of the appeal (and the statement of grounds).
• The applicant is a (human) person in the USA; the registered representative is a firm in Germany. In between are Mr T, a USA patent attorney, a solo practitioner (I think), and Mr S, who is a US Patent Attorney and a European patent attorney. 
• The decision to refuse the patent application was received by the firm and forwarded to Mr S. Mr S (or his office manager) forwards the decision to Mr T, and sends a reminder. No confirmation of receipt was received from Mr T. 
• There, the request for re-establishment becomes vague, but it is clear that no entry was made in the file of Mr T of the refusal decision. The paralegal in the office of Mr T is blamed, i.e., an isolated mistake by an assistant in an otherwise well-functioning system is invoked.
• From the request: "due to an isolated error, [the paralegal]  has never informed[Mr T] about this deadline nor entered the deadline into the [] docketing system. Due to this isolated error by [the paralegal], the appeal deadline is notably absent in the docketing system"
• The public online file contains a declaration of Mr T, stating inter alia that "I delegated docketing responsibilities to the firm paralegal, Ms V ("the firm paralegal") who routinely checks my email account [...] and dockets deadlines from incoming correspondence, predominantly from incoming emails. After docketing, the firm paralegal typically reports deadlines and required actions to the client and cc's me." 
• Mr T does not declare that he personally saw or processed any email from Mr S (or Mr S's office) about the refusal decision.
• There are no declarations of Ms V attached to the request for re-establishment. 
• The Board:  "already on the basis of the appellant's own assertions, it cannot be concluded that (at least) [law firm T's] system of recording and monitoring time limits was water-tight, and that an effective system of cross-checks was in place, as required to provide for a "normally satisfactory monitoring system". While the declarations filed alongside the request for re-establishment somehow add to its factual assertions (...) also no reasons can be found to the contrary." 
• "neither from the request for re-establishment nor from any of the declarations or other documents appended to this request, it could be concluded that any kind of supervision of paralegal V. by experienced US patent attorney T. or any other person in T. Law was in place."
• "nothing is said therein about a system of cross-checks in general, which would have worked independently from the IP docketing system, and the less so why such system would have failed in the present case."
• " Thus, on the basis of the appellant's own submissions and factual assertions alone, it has to be concluded that "all due care required by the circumstances" has not been taken. Against this background, it does not need to be examined whether there were further issues regarding the actions and supervision of any of the other actors involved in the present case."
• Note, it concerns the absence of information in the request for re-establishment.
• What kind of information did the TBA expect: bullets added by me: 
• "nothing is said, at all, 
• why any such system, insofar as in place, at all, did not work in the present case, if the additional entry in the calendar book, if foreseen by their "standard procedure", was made or was not made, for whatever reasons, 
• who might have separately monitored deadlines/entries in the IP docketing system and/or the calendar book, or for whatever reason this has not been done yet, 
• or that any alert would have set off, and/or why such alert had not been followed up, and/or that T. had been made aware of the deadline or not, for whatever reason, and if, or why not, they had enquired themselves about the fate of the deadline, 
• or any other form of supervision that would have normally - and also here - kicked in. 
• Thus, nothing is said that could explain an "isolated error" in a "normally satisfactory monitoring system". Such normally satisfactory system was apparently absent, and no submissions were made to the contrary."
• The Board did not invite the appellant to submit this information, but rejected the request for re-establishment without advance notice and without oral proceedings despite these being requested.
• The point is: in the context of by their nature open-ended enquiries about due care, isn't it logical that the Board can ask many questions? Shouldn't the requester be given an opportunity to answer the questions raised in the decision (provided, of course, that the party remains in the factual framework defined in the request for re-establishment and does not suddenly invoke new grounds)?
  
  
• It is remarkable that the requester invokes an 'isolated mistake', while it can also be derived from the stated facts that the paralegal processed neither the first email (on 30.11.2022) about the refusal decision, nor the reminder (oon 11.01.2023).

EPO  

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t231874eu1

•