Summary of Facts and Submissions     

I. The appeal contests the decision of the Examining Division of the European Patent Office dated 17 July 1981 refusing application No. 79 101 992.0 (publication number 0 007 429). The decision was dispatched by registered letter with advice of delivery to the applicant on the day it was given. The applicant filed the appeal by letter dated 28 August 1981, received on 31 August 1981, and paid the fee for appeal on 9 September 1981. The notice of appeal contains nothing that could be regarded as a Statement of Grounds but simply announces that the Statement of Grounds will be filed later.

II. The Statement of Grounds dated 3 February 1982 was only received on 11 February 1982 after the applicant's attention had been drawn to its absence in a telephone call from the EPO on 21 January 1982. The Statement expressed the view that the EPC does not prescribe a penalty for failure to file a Statement of Grounds. In the alternative, re-establishment of rights was requested and the corresponding fee was paid.

III. In support of the application for re-establishment of rights it was pointed out that when the appeal was filed a reliable assistant was given express and emphatic instructions to re-submit the dossier in time for the Statement of Grounds to be prepared. The dossier was not re-submitted as instructed, unaccountably in view of the triple time-limit control system operated in the firm, comprising a centralised date card, a decentralised duplicate of the card kept in the relevant secretariat and entry in the assistant's diary. It was no longer possible to trace the events that led to the time limit being overstepped but it was suspected that the assistant forgot to make the entry in his diary. In response to a query from the rapporteur, it was added that the assistant had probably returned the time-limit card as redundant once the notice of appeal had been filed. In a further letter, the Board pointed out that according to the facts as stated the control system described (date cards plus diary) had obviously not been used. The applicant reiterated that the assistant had been given the necessary express instructions but that apart from that it was no longer possible to establish what had happened.

Reasons for the Decision     

1. The question of the appeal's admissibility depends on whether the alternative, namely re-establishment of rights in respect of the time limit for filing the Statement of Grounds, is allowed. Contrary to what the applicant says, the EPC most certainly does prescribe a penalty in the event of failure to meet this time limit laid down in Article 108, third sentence, EPC, namely rejection of the appeal as inadmissible pursuant to Rule 65(1) EPC which clearly refers to Article 108 EPC. In all three languages (massgebenden Fristen - the relevant time limit - de l'un ou l'autre des délais) this Rule makes it quite clear that failure to meet either the time limit under Article 108, first sentence, or that under Article 108, third sentence, results in "rejection of the appeal as inadmissible".While the desirability of this consequence was questioned by one delegation at the Munich Diplomatic Conference (Minutes, p. 52, points 460-466), three delegations spoke in favour of it and the Conference interpreted the texts submitted to it of Article 108 (then 107) and Rule 65 (then 66) in that way. The Conference did not contradict this interpretation of the Convention. Since the notice of appeal itself does not contain anything that could be regarded as a Statement of Grounds, the whole question depends on the decision on the application for re-establishment of rights, filed in the alternative.

2. The application for re-establishment of rights in respect of the time limit for filing the Statement of Grounds complies with the formal requirements of Article 122(2) and (3) EPC.

3. The application would be duly supported only if it was clear from the facts set out and substantiated that the applicant had taken all due care required by the circumstances to observe the time limit. Then he would not be held liable for a wrongful act or omission on the part of an assistant under the conditions set out in Decision J 05/80 of the Legal Board of Appeal of 7 July 1981 (OJ EPO 1981, p. 343). However, first of all a conclusive case must be made, setting out and substantiating the facts, for the probability - at least - that a wrongful act or omission on the part of an assistant was the cause of the failure to meet the time limit: the mere possibility is not sufficient to exculpate the applicant. The Board's conclusion, as conveyed to the applicant, is that on the basis of the facts presented the available means under the time-limit control system (date cards and diary) were not used at all. Accordingly, a deficiency in the instructions given appears no less probable than a wrongful act or omission on the part of the assistant. As the assistant did not use any of the means at his disposal, deficient instructions would seem the likelier explanation. Since, therefore, a conclusive and substantiated case that would persuade the Board that the applicant took all due care required by the circumstances has not been made, the application for re- establishment of rights cannot be granted.

4. Although the applicant has not requested a refund of the fee for appeal, this possibility can be considered by the Board of its own motion in accordance with Rule 67 and Article 114(1) EPC (cf. also J 07/80 in OJ EPO 1982, p. 391).

5. Since the appeal has to be rejected as inadmissible solely because the Statement of Grounds was not filed in due time, the question arises whether the fee for appeal has to be refunded in such a case. The question of whether it can be refunded where one of the other two time limits has not been met (filing of the notice of appeal, payment of the fee) need not be gone into here (cf. J 21/80 in OJ EPO 1980, p. 101, J 16/82 of 2 March 1983, in OJ EPO 7/1983, p. 262, and T 41/82 in OJ EPO 1982, p. 256).

6. While it was concluded in the afore-mentioned decisions that the fee could be refunded if it was paid late (possibly even if the payment was in time but the notice of appeal was filed late), the same does not apply if the appeal is inadmissible solely because the Statement of Grounds was not filed in due time. At first sight this might seem inequitable especially as in the present case there is no doubt that the applicant did not file the appeal merely as a precautionary measure but had every intention of proceeding with the appeal when he filed the notice thereof. The failure to file the Statement of Grounds was a genuine omission, though not excusable for the purposes of Article 122 (1) EPC.

7. The "separate time limits" for filing the appeal and the Statement of Grounds were the subject of further detailed discussion at the Munich Diplomatic Conference (cf. minutes, p. 51, points 447 to 466). One delegation (point 465) made the precise point that the fee for appeal should not, in its view, be refunded if the Statement of Grounds were not filed in time. The Board takes the same view, not because it was the conclusion reached by one delegation after the discussion at the Conference but because it is in line with the "separate time limits" concept adopted by the Conference. From the Conference discussions it is clear that the sole purpose of this arrangement was to give more time for a proper Statement of Grounds to be drawn up. A situation was to be avoided in which an appeal would be filed merely as a precautionary measure with the decision to proceed being signified by filing the Statement of Grounds and a refund being claimed otherwise. While this was not the course contemplated by the applicant in the present case, no distinction of principle can be made between his case and that of a mere precautionary filing aimed at extending the time limit (cf. T 41/82 in OJ EPO 1982, p. 256). Under the "separate time limits" arrangement, therefore, the fee for appeal cannot be refunded if the Statement of Grounds is not filed or filed late.

ORDER     

For these reasons, it is decided that:

1. The application for re-establishment of rights in respect of the time limit for filing the Statement of Grounds of appeal is refused.

2. The appeal is rejected as inadmissible.

Remarks:

O.J. EPO issue: 1983,411

Case law reports: CLBA 1996