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Restitutio Art 122 EPC - Reuters - T439/06
21. December 07

A recent decision illustrates now how difficult it is to obtain Restitutio before the EPO. Twenty years years of alleged error-free performance by an alleged diligent patent assistant terminated in one error of incorrectly computing a deadline by circa 4 days. EPO deemed that the remedy of Restitutio would not be available.

"EPC2000" is the latest revision of the European Patent Convention taking effect from the end of year 2007 onwards. Rule 136(2) EPC2000 stipulates that a remedy of Restitutio (Art 122 EPC2000), namely Restoration of Rights, is not available for periods for which a remedy of Further Processing (Art 121 EPC2000) is available. This is a change from the earlier "EPC1973" where Restitutio and Further Processing were in certian situations concurrently available as remedies.

A recent decision T439/06 reported in OJEPO 10/2007 illustrates now how difficult it is to obtain Restitutio before the EPO. Twenty years years of alleged error-free performance by an alleged diligent patent assistant terminated in one error of incorrectly computing a deadline by circa 4 days. The error was undetected by the assistant's associated patent attorney. The missed deadline was deemed by the EPO to be an error which a proper duty-of-care could have detected. Even despite the deadline being missed by only a few days, the EPO deemed that the remedy of Restitutio would not be available.

The decision illustrates that aforesaid Restitutio is only available in very exceptional circumstances where it is possible to prove that all duty-of-care had been exercised. It the future, it would appear that the remedy of Further Processing will be often employed for missed deadlines and requires thorough internal deadline safety checks. If a Further Processing deadline is missed, there is now no alternative remedy before the EPO, so great care has to be exercised. At Acapo AS, we employ various internal safety checks for ensuring that duty-of-care is professionally exercised in respect of deadlines.

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