T 1874/23 - (II) Häufungsgrundsatz

Key points

• The TBA rejected a request for re-establishment of the appellant-applicant (late filing of the notice of appeal and statement of grounds) without advance notice (and without holding oral proceedings despite these having been requested).
• The Board:  As outlined above, a request for re-establishment must substantiate the grounds and facts within the time limit of Rule 136(1) EPC (see also Article 114(2) EPC).
• Indeed, Rule 136(2) EPC specifies that "The request shall state the grounds on which it is based and shall set out the facts on which it relies.".
• "Thus, the factual basis for the requested decision cannot be altered after the expiry of the time limit for the request (Case Law, III.E.4.4, see J 19/05, Reasons 4, 5; T 585/08, Reasons 9; T 479/10, Reasons 2.1; J 15/10, Reasons 3.2; J 6/22, Reasons 14; T 178/23, Reasons 5.2.1)."
• Note, the legal term 'altered' does not mean 'can not be supplemented or further elaborated'. Probably, you cannot switch from the ground 'sudden illness' to 'a hacker in our IT systems', but adding more details about how sudden the illness was, is not excluded by the phrase  'the factual basis cannot be altered'.
• J 15/10: "present the core facts making it possible to consider whether all due care required by the circumstances had been taken to comply with the time limit concerned" (emphasis added).
• J 19/05: "Ein Nachschieben von (neuen) Tatsachen, die einen anderen Hindernisgrund betreffen, ist daher unzulässig." ...  "Auch ein auf allgemein gehaltene Behauptungen gestützter Wiedereinsetzungsantrag, der keine individualisierbaren Tatsachen enthält, genügt nicht der Begründungspflicht nach Artikel 122 (3), Satz 1 EPÜ [1973] und ist daher mangels Substantiierung als unzulässig zurückzuweisen." (emphasis added)
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• "20. This requirement for immediate and complete substantiation of the request corresponds to the principle of "Eventualmaxime" or "Häufungsgrundsatz" in contracting states with a German law tradition ("le principe de la concentration des moyens" in France), under which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage.
• Note, 1) the EPO legal rule, by very definition, cannot be the German rule as such - they are different legal instruments, so the meaning of 'corresponds to' must be considered;
• 2) The German rule apparently includes "means of evidence", which is not mentioned in Rule 136(2) EPC (and must have been intentionally left out by the legislator, in which case the EPC legislator apparently did not wish to adopt the German approach) (see T324/90 - "it is not necessary that the application for re-establishment of rights provide any prima facie evidence for the facts set out in it, nor is it necessary that it indicate the means by which those facts are supported");
• 3) The Board does not explain why the EPO rule would be the same (in substance) as the German rule;
• 4) In view of Article 125 EPC, it cannot be assumed that EPC procedural law is the same as German law, or the national law of any other EPC contracting state, or that any (perceived) lacuna in the procedural provisions of the EPC must be filled in in accordance with German law (Art. 125 EPC: " the principles of procedural law generally recognised in the Contracting States")
• The Board does not explain why it refers to German law and not the law of another EPC contracting state.
• The TBA refers to: "see e.g. Foerste in Musielak/Voit, ZPO, 21**(st) edn. 2024, § 282 Rn. 4 f); Deixler-Hübner in Fasching/Konecny, Zivilprozessgesetze, 3**(rd) edn. 2017, II/2 § 149 ZPO; Gitschthaler in Rechberger/Klicka, ZPO, 5**(th) edn. 2019, §§ 148 f 2; Article 1355 du code civil, Cass. ass. plén., 7 juillet 2006, n° 04-10.672)."
• Article 1355 du code civil - France is about res judicata (link);
• Cass. ass. plén., 7 juillet 2006, n° 04-10.672 (link) is also about res judicata, or claim preclusion (second litigation of the same claim on a different legal ground (first: salary, second procedure: unjust enrichment; in litigation against a father's estate).
• Res judicata is indeed a generally accepted principle. However, it is not relevant to the case at hand, where there is a request for re-establishment, not an earlier decision of the EPO.
• I don't have quick access to the cited German handbooks.
•  The term Eventualmaxime was also used in J14/21, but in that case, the Examining Division had admitted the additional factual assertions. The Board, in the appeal against the refusal of the request, did not admit further factual assertions, which is in line with Art. 12(6) RPBA. Hence, the term was used obiter (and without references to the German handbook and French decision). The same applies to "Häufungsgrundsatz". In other words, the Board is not simply recalling established EPO case law (indeed, the decision does not cite case law on this point). 
• 21. Only if this requirement for immediate and complete substantiation within the time limit has been fulfilled, might it be permissible to complement the facts and evidence in later submissions, and provided that they do not extend beyond the framework of the previous submissions (see J 5/94, Reasons 2.3; J 19/05, Reasons 5; T 585/08, Reasons 9; J 15/10, Reasons 3.1; see also J 8/95, Reasons 3; T 324/90, Reasons 5).
• Here, it is unclear if the Board refers to the German requirement (for immediate and complete substantiation of requests for re-establishment), or to Rule 136(2) EPC, or if the Board has just decided that Rule 136(2) EPC, first sentence, is in substance the same as that German rule.
• Note: Would the requesting party have had a right to present orally arguments about the correct legal interpretation of the first sentence of Rule 136(2) EPC during the oral proceedings that had been requested by them (but were refused by the Board)?
• As already noted in  T324/90, the language versions of Rule 136(2) differ. The German version of the first sentence is "Der Antrag auf Wiedereinsetzung ist zu begründen, wobei die zur Begründung dienenden Tatsachen glaubhaft zu machen sind." The French version: "La requête doit être motivée et indiquer les faits invoqués à son appui". The English version: "The request shall state the grounds on which it is based and shall set out the facts on which it relies." Only the German version seems to suppose that the facts are not merely stated or indicated, but are supported by evidence (" glaubhaft zu machen"). Of course, the three texts are equally authentic (Article 177).  
• 22. As outlined above, this is not the case here for the request for re-establishment in these proceedings. In particular, no factual assertions were made at least on the provision of supervision and/or an independent cross-check mechanism in [US patent attorney firm T] to make for a normally satisfactory monitoring system. (...)

• 25. ... Given the inherent restrictions for factual assertions outside the time limit for the request of re-establishment in these proceedings (the principle of "Eventualmaxime", see above), the appellant is even prevented from validly submitting new factual assertions at this stage, including in oral proceedings.
• The phrase 'inherent restrictions' seems to refer to the provision of Rule 136(2) EPC, as interpreted.
• The Board's analysis of Rule 136(2) could have been more complete by including an application of the grammatical, systematic, and theological methods of interpretation in the written decision and a reference to the travaux préparatoires. 

EPO 

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

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