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European Patent Office: So You Missed a Deadline – What’s Your Excuse?

In decision J 0010/20, a Board of Appeal of the European Patent Office had to consider several excuses for missed deadlines:

 1. “I filed the grounds of appeal six weeks late because of COVID-19!”

The Board considered whether the appeal was admissible in view of the European Patent Office’s Notice of 1 May 2020, which stated that because of “the disruptions due to the COVID-19 outbreak” all periods expiring on or after 15 March 2020 were extended to 2 June 2020.

The Board did not agree with the analogous application of Rule 134(2) EPC used in this EPO notice, since Rule 134(2) EPC only refers to the delivery or transmission of mail, and it was questionable whether it can be applied to more general disruptions.

However, the Board applied the principle of legitimate expectations. Considering the Notice of 1 May 2020 in this light, the grounds of appeal were filed within the time limits.

 2. “I submitted a payment with my bank on the day of the deadline, but it arrived at the EPO three days late!”

According to Article 7(3) of RFees, a late payment can be considered as fulfilled on time if the bank payment was made in a Contracting State within the correct time period, even if it arrives in the EPO’s account after this date.

Appellant submitted that the fee for further processing was paid by a Brazilian bank with a subsidiary in London on the day of the deadline. The Board decided that merely having a subsidiary in London does not mean that a Brazilian bank fulfils the requirement of Article 7(3) of RFees, and there was no evidence that the subsidiary was in any way involved in the interaction.

Therefore, the Board decided that the Appellant missed the deadline.

 3. “You calculated the removal of the cause of non-compliance wrong!”

A request for re-establishment of rights under Rule 136(1) EPC can be filed within two months of the removal of the cause of non-compliance.

The Appellant’s representative was aware of having missed the time limit for further processing, however, he alleged that the removal of the cause of non-compliance was the date (1 month later) when the Appellant learned about the missed time limit.

The Board disagreed and confirmed the standing practice of the EPO as decided in J 27/90, “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”.

Thus, it is important to understand the correct definition of terms that define time-points in order to find the starting date of a deadline.

Our blog contributions shall provide an overview with regard to legal topics, legislation and case law and are supposed to provide some general information rather than constituting any specific advice. Please do not hesitate to contact Maiwald and in particular the authors of the particular contributions if have any questions on the addressed topics or on other legal issues.

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Dr. Laura-Nadine Schuhmacher


German Patent Attorney

M.Sc. Molecular Biosciences