Monday, December 07, 2020 T 2620/18 - Appeal deemed not filed due to mistaken payment of small-entities appeal fee

The  Schedule of fees of the EPO has two amounts for the appeal fee. A small fee for natural persons or small entities, as defined in Rule 6(4) and (5) EPC, and a large fee for everybody else. What happens, if you accidently declare yourself a small entity, even though you are a large entity, and thus pay the wrong fee? When filing an appeal to an opposition this happened to the unlucky appellant. In this case the appeal was deemed not filed. In particular, an attempt to correct under Rule 139, was dismissed as the correction was not filed quickly enough. 

In the decision, the Board goes through of the ways in which this may be rectified, but comes to the conclusion that none apply.  The decision has the following abstract (translated from the German):

For the question of the insignificance of the difference between the full appeal fee and the appeal fee, see Reasons No. 4.8.

On the question of an implicit request for correction of a debit order and the timeliness of the submission of a request for correction, see Reasons 5.7 to 5.14.

On the issue of ex officio correction of amounts in debit orders, see Reasons 6.1 and 6.2.

For the question of interpretation of a debit order with regard to the appeal fee, see Reasons No. 8.4.

Below a machine translation of the sections cited in the abstract is provided, and below that, the original German. 

Tuesday, August 13, 2019 G 1/18 - late appeal fee or notice: appeal deemed not filed

The Enlarged Board of Appeal issued opinion G 1/18 on 18.07.2019 on the distinction between an appeal deemed not to have been filed and an inadmissible appeal (where the appeal fee was paid late and/or the notice of appeal was filed late, i.e. outside the 2-month time limit of Art. 108 EPC), and on the consequences of this. A news message was posted on the website of the Boards of Appeal on the same day. The complete decision became available online on 31.07.2019, and is at this moment only available in French. We cite the complete news message and some selected parts of the decision below.

Tuesday, July 02, 2019 T 551/15 - Outcome of G 1/18 not relevant (?)

Within the two-month period under Article 108 EPC, the opponent filed notice of appeal and paid the corresponding appeal fee. On 17 March 2015, i.e. prior to the expiry of the two-month period under Article 108 EPC, the patent proprietor submitted, via the electronic filing system, a document entitled "Letter accompanying subsequently filed items". The document indicated the patent application number, the name and address of the representative and the representative's reference number. Under the heading "Fees" it specified the fee for appeal, and under the heading "Payment" it contained a debit order authorising the EPO to debit the appeal fee from the deposit account, followed by the details as to the deposit account and an indication relating to where any reimbursement was to be made. The document did not contain any further text, nor was it accompanied by any further document. The payment of the appeal fee was effected with the date of 17 March 2015. In its statement of grounds of appeal, the patent proprietor stated: "Further to the Notice of Appeal filed on 17.03.2015 by the payment of the appropriate fee, we hereby submit the Grounds of Appeal...". Together with this letter, the patent proprietor filed claim sets as the main request and auxiliary requests. Did the proprietor file a notice of appeal? If so, did he file it in time or too late? if it was too late, was the appeal deemed not filed or inadmissble? Did the proprietor's appeal get into existence? Did the opponent get the appeal fee reimbursed (which can only be done if there was no legal basis for its payment or if there is a legal provision for the refund/reimbursement)? What is the effect of G 1/18 on this case - in particular, did it need to be stayed? Is it of relevance herein that appeal proceedings anyhow got into existence due to the appeal of the opponent, and that the proprietor would be a party as of right in both situations (deemed not filed or inadmissible)? If G 1/18 is applicable, but the case is not stayed as the outcome on the merits of the appeal does not change, can a decision on the reimbursement/refund be made without staying in view of the relevance of G 1/18 on that decision (esp. as refund is not at the discretion of the EPO/Board)?  

Friday, November 02, 2018 T 0918/17 - Copy-paste approach doesn't cut it

The present case concerns an appeal that was deemed inadmissible for failing to identify the reasons why the impugned decision should be set aside. The decision in question was a refusal by the Examining Division on the grounds of extension of subject matter and lack of inventive step. The initial objection raised in the European search opinion was lack of novelty. In response, the applicant filed amended claims and generally addressed the patentability of the amended claims.

The new independent claim was held to contravene Art. 123(2) and Art. 56 EPC. The next response from the applicant focussed solely on arguments as to why the contested amendment to claim 1 was indeed fully supported in the application as filed. The Examining Division was not persuaded and maintained both its objections, after which the applicant requested a decision according to the state of the file and withdrew the request for oral proceedings. The subsequent decision to refuse was appealed.

In the Board's opinion, the filed statement of grounds did not explain why the Examining Division's Art. 56 objection was incorrect. They also highlighted the fact that the majority of the submission on this issue was a mere copy-paste from the initial response to the search opinion, which was more specifically directed to novelty and only generally addressed inventiveness  The Board therefore held that they were unable to decide on the correctness of the objection without first having to make investigations of their own.

The applicant did not respond to the Board's preliminary opinion on admissibility and the appeal was rejected as inadmissible.

Tuesday, August 14, 2018 G 1/18 - Appeal deemed not to be filed or inadmissible in case of delayed fee payment?

The (former) President of the EPO has referred a point of law concerning the interpretation of Article 108 EPC to the Enlarged Board of Appeal: Lorsque la formation d'un recours et/ou la taxe de paiement ont lieu après l'expiration du délai de deux mois prévu à l'article 108 CBE, le recours est-il irrecevable ou réputé non formé, et la taxe de recours doit-elle être remboursée ? (Provisional translation of the question into English (source): If notice of appeal is filed and/or the appeal fee is paid after expiry of the two month time limit under Article 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed?Provisional translation of the question into German (source): Wenn erst nach Ablauf der in Artikel 108 EPÜ vorgesehenen Frist von zwei Monaten Beschwerde eingelegt und/oder die Beschwerdegebühr entrichtet wird, ist die Beschwerde dann unzulässig oder gilt sie als nicht eingelegt, und muss die Beschwerdegebühr zurückgezahlt werden?). The question concerns the same issue as earlier referrals G 1/14 and G 2/14, which did however not lead to an answer due to the referral being considered inadmissible or because the underlying case ceased to be in existence. 
T 1325/15, issued shortly after G 1/14 and G 2/14 proceedings were ended, could have been seen by some to answer the question, but at least one other Board did not follow it - a final decision/opinion by the EBA will settle the issue. Note that T 1325/15 wrote in r.35. "Both referral decisions concentrated on the meaning of Art.108, second sentence, which reads "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid". In numerous decisions the BoAs had interpreted this provision as meaning that an appeal did not come into existence, i.e. the notice of appeal was deemed not to have been filed, if the appeal fee was not paid within the two-month time limit of Art. 108, first sentence. In a smaller number of deviating decisions, the boards of appeal dismissed the appeal as inadmissible where the notice of appeal was filed and the appeal fee paid after expiry of the time limit." Also, in r.41. "Art.108, first sentence, requires that notice of appeal be filed within two months of notification of the decision. If no notice of appeal is filed, then no appeal comes into existence. Although the position that R.101(1) means that a late-filed notice of appeal brings into existence an inadmissible appeal may be not unreasonable, in view of the general rule that no distinction is to be made between the late filing and the non-filing of a document, the Board considers that no appeal exists where a notice of appeal was not (deemed to be) filed in due time." and "r.42. The Board notes that its approach, although it has not always consistently been applied in the jurisprudence of the boards of appeal, is also in line with the reasoning in earlier decisions which have argued that an appeal is deemed not to have been filed where the appeal fee was paid in time but the notice of appeal was filed only after expiry of the two-month period of Art.108(1) (see in particular decisions J 19/90, r.1.2.2 and 4; T 445/98, r.1.2, 5, 6 and 7; and T 778/00, section V of the facts and submissions and point 6 of the reasons)." 
It may also be worthwhile to consider the observation made in T 2017/12, r.3.1.1 (the decision that led to the referral G 2/14):“The leading decision is J 21/80. In this case the appeal fee had been paid late. The board held that, "En raison de l'inexistence d'un recours valable, le montant de la taxe de recours payée tardivement doit être restitué.' There is no further reasoning. The order, originally in French, contains the following statement: 'Le recours contre la décision de la Section de dépôt du 12 mai 1980 est considéré comme non formé." The English translation of this, "The appeal against the Decision ... is inadmissible", is incorrect, whereas the German translation is accurate: "Die Beschwerde ... gilt als nicht eingelegt."” 

Wednesday, November 22, 2017 T 2406/16 - Reestablishment when appeal fee not paid

It's another one of those nightmare scenario's. A notice of appeal is filed but the appeal fee is not paid. 

The attorney signed a notice of appeal and instructed his assistant to file the notice and pay the fee as soon as the deposit account contains enough funds. The latter requires checking with the CFO that there are enough funds in the deposit account, and can take a few days. Unfortunately, the assistent accidentally removed the due date from the system when the notice is filed. This  should not have been done until the payment was made. The board did not view this as an isolated mistake and refused to reinstate the case. 

Thursday, June 16, 2016 T 1325/15 - Inadmissible or simply not filed?

Appeals!

This appeal revisits the question whether an appeal is to be found inadmissible or deemed not to have been filed if the notice of appeal is filed within the time limit, while the appeal fee is paid only after expiry of the time limit for filing the notice of appeal.

It is recalled that Article 108 EPC, second sentence, reads "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid", without explicitly specifying that the fee for appeal should have been paid on time, i.e., within the applicable time limit.

The issue had already been referred to the Enlarged Board of Appeal by T 2017/12 and T 1553/13, without either referral resulting in an answer.

The Board's conclusion is in line with the established practice: the late filing of a document is treated in the same way as its non-filing. As such, the appeal is deemed not to have been filed by the Board.

Catchwords: See points 34 to 43 of the reasons

Friday, March 18, 2016 T 0105/11: a requested correction of a decision and a too late filed ground of appeal

Admissibility of an appeal is quite often a point of discussion. In this case the Examining Division refused to grant a patent in a decision and the Applicant requested a correction of the (original) decision. When the Examining Division re-issued the decision it was not made completely clear that the re-issued decision was a correction of the previous decision (however, this is implicitly clear because the Applicant requested a correction). Case law defines that a correction of a decision has retrospective effect and that, thus, the date of refusing the patent application does not change and, thus, the appeal term still starts at the date of the original decision. In this case the Applicant filed a notice of appeal within the 2 months from the original decision, but filed the ground of appeal after the end of the 4 months period from the date of the original decision (and within 4 months from the date on which the decision was re-issued). In some appeal cases the principle of "protection of legitimate expectations" was applied in "similar" cases and the appeal was admissible. However, the Board had some doubts that this situation was similar enough to the previous cases. "Albeit not entirely without hesitation", the Board decided on this subject.

Tuesday, January 19, 2016 T 399/13 - No why, so inadmissible

When filing the appeal against the decision from the Opposition Division, the appellant filed three new sets of amended claims and arguments as to their allowability, but did not give a reasoning why the appealed decision was wrong. Without this necessary link between the contested decision and the statement of grounds, the appeal was held inadmissible by the Board.

Friday, October 23, 2015 T 1171/13: the assistant forgot to fax the statement of grounds of appeal

The Appellant (opponent) filed a request for re-establishment of rights because the assistant of the appellant's representative forgot to fax the statement of grounds of appeal on time while the representative had his holidays. The respondent (patent proprietor) argued that the system of the representative lacks cross-checks and, thus, that the system is not sufficient for showing all due care. The deadline/reminder for submitting the statement of the grounds of appeal was deleted after the representative indicated in the system that he had completed his tasks. The Board is of the opinion that, based on case law, the existing of such cross-checks is not relevant when the error only concerns forgetting to submit the statement to the EPO on time while the statement was ready on time. It seems that the system of registering deadlines and generating reminders is necessary to remind the representative to perform his task on time. On the contrary, it seems not to be necessary to use such a system for reminding the assistant to perform her task on time when it concerns an isolated mistake in a normally well-functioning system and when the assistant is well-trained, experienced, thoroughly component and well-instructed how to handle the letter drafted by the representative. I think that, for example, the Dutch Patent Office will require in such a case that the assistant also uses the system of generating reminders for submitting the letter on time.

Friday, October 02, 2015 T 595/11: underpayment of appeal fee and still admissable?

A 20% reduced appeal fee was paid by the Appellant (patent owner) who filed a notice of appeal in Dutch, while the patent owner is a legal person in Switzerland. The EPO communicated the file number to the Appellant and the Respondent (opponent) and indicated that the case was referred to a specific Board without any further comments. Later, when the respondent informed the Board that the Appellant was not entitled to the fee reduction, the Appellant paid the remaining portion of the fee and requested that the EPO to accept the late payment of the full appeal fee through the application of the principle of good faith (according to G2/97: the principle of the protection of legitimate expectations). In this case the Board discusses whether the Appellant could have expected that the EPO checked the entitlement to the fee reduction early enough such that the Appellant could have remedied the Appeal, for example, by paying the full fee on time or by filing a request for re-establishment of rights. In response to arguments of the Respondent, the Board had also to consider whether the consequence of its decision would adversely affect one or more parties to the Appeal if the principle of the protection of legitimate expectations applies to this case.

Friday, September 18, 2015 T 327/13 - Standing and falling as a whole

This opposition appeal is against the Opposition Division's decision to maintain claim 3 as granted (in the context of claim 1 of auxiliary request 1). The appellant considered himself to be adversely affected as by the Opposition Division's decision not to maintain claim 2 as granted. Of relevance in the present case is that claim 2 as granted was not the subject of an individual request in the opposition proceedings, but rather only included as a dependent claim in the main request.

Summary of Facts and Submissions

III. The Opposition Division held that the patent proprietors' main request could not be allowed because the subject-matter of amended claim 1 lacked novelty over D1, but that, account being taken of the amendments in the patent proprietors' auxiliary request 1, the patent and the invention to which it relates meet the requirements of the EPC.

IV. This interlocutory decision has been appealed by the patent proprietors (in the following "the appellants").

(...)

IX. The written and oral arguments of the appellants, insofar as they are relevant for the present decision, can be summarised as follows:

The Opposition Division's decision to maintain claim 3 as granted (in the context of claim 1 of auxiliary request 1) is not challenged; however, the appellants are adversely affected by the Opposition Division's decision not to maintain claim 2 as granted, although its subject-matter is novel and inventive in view of D1 (WO 00/35614 A1, filed with the notice of opposition and cited in the decision under appeal).

Clearly the appellants are adversely affected by the Opposition Division's decision to dismiss their main request. It also follows from T 528/93 that, only when a request is withdrawn during the opposition proceedings and re-filed in appeal, is the appellant not adversely affected by the decision of the Opposition Division as far as this request is concerned. In the present case, the appellants did not withdraw their main request and thus, following the reasoning of T 528/93, they are adversely affected by the decision of the Opposition Division to dismiss it.

It is established case law, see for instance T 760/08 (point 2 of the reasons) and T 1708/08 (point 1.3 of the reasons), that the statement of the grounds for appeal satisfies the requirements of Article 108 EPC, third sentence, even if it does not state any specific reason why the decision is contested, provided there is a change in the subject of the proceedings due to the filing of new claims and where the reasons for the decision are no longer relevant in view of the new claims. The appellants filed two new sets of claims which remedy the deficiency of the appellants' main request as identified by the Opposition Division in its decision. Thus, the appeal should be considered as being sufficiently substantiated.

Friday, January 30, 2015 T 1101/14 - Don't put the blame on your secretary, if you as a representative failed yourself!

A representative  mistakenly signed a statement of grounds of appeal having most of its pages missing. As a result, the statement of grounds of appeal, did not indicate the reasons for setting aside the impugned decision or the extent to which it was to be amended - and the Board came to the preliminary conclusion that the appeal appeared to be  inadmissible. The representative tried to argue all due care, referring to the secretary's reliability (trying to put all the blame on her), but ignoring the representative's own lack of particular care when checking and signing the documents to be submitted. But: no excuses for not having checked that carefully! 

Summary of Facts and Submissions

I. The appeal lies against the decision of the examining division [...]

II. The appellant filed a notice of appeal on 31 Janu­a­ry 2014 and paid the appeal fee on the same day. On 11 April 2014, the appellant submitted, electro­nically, amended claims and description pages accor­ding to a main request and auxiliary requests 1-3, accom­panied by a letter stating the following:

"In the matter of the Appeal, we enclose herewith the Grounds of Appeal, to­gether with amended description pages and claims in re­lation to a Main Request and First to Third Auxiliary Re­quests. We request that the decision of the Examining Division be set aside in its entirety, and that a pa­tent be granted based on the application in the form of the Main Request. If the Appeal Board considers that the Main Request is not permissible, we respectfully request an opinion in relation to the allowability of the First to Third Auxiliary Requests. We request Oral Proceedings in the event that any of the Requests are not considered allow­able by the Appeal Board."

No fur­ther reasons were received with that submission, nor did the letter contain a list of intended enclosures.

III. With a summons to oral proceedings, the board informed the appellant of its preliminary opinion that the letter of 11 April 2014, which the board considered to constitute the statement of grounds of appeal, did not indicate the reasons for setting aside the impugned decision or the extent to which it was to be amended. The board therefore came to the preliminary conclusion that the grounds of appeal did not satisfy the require­ments of Rule 99(2) EPC so that the appeal appeared to be inadmissible pursuant to Rule 101(1) EPC. The appellant was also informed that the oral pro­ceedings would be limited to the question of admissibility.

IV. In response to the summons, received on 26 September 2014, the appellant argued that "the Grounds of Appeal which were filed were not the 'full' intended Grounds" and reques­ted re-establishment of the applicant's right in the application under Article 122 EPC in view of the fact that, in spite of all due care required by the cir­cum­stances having been taken, the Applicant was unable to observe the deadline for filing the grounds of appeal under Article 108 EPC.

V. In a communication dated 8 October 2014, the board in­formed the appellant that the request for re-establish­ment would be dealt with in the planned oral procee­dings and raised a number of questions. Since a sub­mission rela­ting to the grounds of appeal was re­ceived in time, it appeared questionable whether a time limit had been missed at all and therefore whe­ther the re­quest for re-establishment was admissible. The board also noted that the appellant had, in res­ponse to its electronic sub­mission, received an imme­di­ate acknow­ledge­ment of re­ceipt from which the omission of a sepa­rate document con­tai­ning the grounds of appeal should have been appa­rent. In view of this it seemed that the cause of non-compliance had been re­moved directly after trans­mission and that consequently the request for re-establish­ment was not filed within the two-month period pre­scribed by the EPC. Moreover, even if the request for re-estab­lish­ment had been made in good time, the presence of the receipt would appear to have a bea­ring on the assessment of whether all due care re­quired by the circumstances had been taken.

VI. The appellant provided further arguments in a letter dated 23 October 2014.

VII. The appellant's case, insofar as it is relevant to the present decision, can be summarized as follows.

a) By 1 April 2014, the appellant and the repre­sen­tative had come to an agreement as to which do­cu­ments were to be filed as and with the grounds of appeal.

b) On 11 April 2014, a bundle of documents was pre­pared for uploading to the electronic filing sys­tem including, in particular, a letter relating to the appeal procedure comprising a cover letter and a twelve-page annex containing the actual grounds of appeal.

c) The procedure normally followed by the represen­ta­tive and her secretary for an electronic filing con­sisted of five steps:

1. The representative would instruct the secretary which documents were to be filed.
2. The secretary would upload these documents to the local end of the electronic filing system.
3. The representative would click through every page of the uploaded documents and, once verified, electronically sign them.
4. The secretary would perform the "send" function of the electronic filing system and thus have the signed documents transmitted to the EPO.
5. The secretary would receive the electronic receipt of transmission and check whether the documents enclosed for transmission were properly transmitted.

d) This procedure was also followed in the present case. However, two errors occurred. The se­cretary failed in step ii) to upload the twelve-page annex containing the grounds of appeal, and the repre­sen­tative failed to notice in step iii) that this annex was missing before elec­tronically signing the documents for trans­mission.

VIII. The oral proceedings were held on 12 December 2014, at the end of which the chairman announced the decision of the board.

Reasons for the Decision

The admissibility of the request for re-establishment

1. According to Article 122(1) EPC, the remedy of re-estab­lishment is available to an applicant or pro­­pri­e­tor who was unable to observe a time-limit vis-à-vis the European patent office. Given that a statement of grounds of appeal was received in time on 11 April 2014, it might be considered that no time limit was missed at all.

1.1 The appellant argued that the letter received on 11 April 2014 did not constitute the grounds of appeal. This was obvious from the letter because it referred to grounds of appeal which were meant to be "enclose[d] herewith" but which were, in fact, not. The appellant also referred to Rule 99(2) EPC which required the statement of grounds of appeal to contain "the reasons for setting aside the decision impugned [...] and the facts and evidence on which the appeal is based" and argued that the submission of 11 April 2014 clearly did not contain reasons, facts or evidence. According to the appellant, therefore, no grounds of appeal were received at all and hence the time limit under Article 108 EPC for filing the grounds of appeal was missed.

1.2 The board is not convinced by the appellant's argument. Rule 99(2) EPC provides that the statement of grounds of appeal "shall indicate the reasons for setting aside the decision impugned, or the extent to which it is to be amen­ded" (emphasis by the board). When an appellant does not maintain the claims as refused but files amen­ded claims, it is a priori reasonable to assume that the appellant may not want to challenge the rea­sons of decision under appeal but rather wants it to be amen­ded. Thus the absence of reasons in the letter of 11 Ap­ril 2014 does not allow the conclusion that the letter does not constitute grounds of appeal in the sense of Article 108 EPC.

1.3 However, even though something was filed within the appropriate time limit which could be understood to be the statement of grounds of appeal, the board accepts that the submission was incomplete with respect to what was meant to be filed at the time. The appellant poin­ted out that not admitting the request for re-estab­lish­­­ment would, in the present case, be tantamount to denying the appellant its access to the boards of appeal and therefore its only remedy against the deci­sion under appeal, and argued that this would be a dis­proportional consequence of the representative's pro­cedural slip.

1.4 The board agrees with the appellant that Article 122 EPC is intended to provide a remedy for the type of error that occurred in the present case.

2. According to Rule 136(1) EPC, the request for re-es­tablishment of rights shall be filed in writing with­in two months from the removal of the cause of non-com­pli­­ance with the time limit. According to the juris­pru­dence of the boards of appeal, the cause of non-compli­ance is removed on the date on which the person respon­sible for the application is made aware of the fact that a time limit has not been observed or when the per­son concerned ought to have noticed the error if all due care had been taken (see Case Law of the Boards of Appeal of the European Patent Office, 7th ed. 2013, III.E.3.1.1 a)).

2.1 The representative argues that she became aware of her error only when she received the board's communication dated 5 August 2014, so that the two months period started at that point.

2.2 The statement of grounds of appeal was filed electro­nically on 11 April 2014. In immediate response to this filing, the appellant received an acknowledgement of re­ceipt for the submitted documents (see also annex G, filed on 26 September 2014). The pertinent list men­tions a letter of appeal ("APPEAL-LETT-1.pdf") having merely two pages and, apart from that, only amended claims and description pages. In particular, receipt of a twelve-page document containing a statement of grounds was not acknowledged. The board is of the opin­ion that the omission would have been directly apparent to the representative had she checked the acknowledge­ment of receipt.

2.3 The representative has however argued that she [= the representative] does not - and is not required to - check the electronic acknowledgement of receipt, as this is a secretarial task. She explained that, according to the procedure for elec­tronic filing used in her office, the primary pur­pose of the acknowledgement of receipt is to confirm that the documents received at the EPO tally with the trans­mitted ones so that, in the case of a transmission problem, some or all of the documents can be sent again.

2.4 The board considers the electronic fi­ling procedure used in the representative's office and, in particular, the use made of the electronic re­ceipt according to that procedure, to be reasonable. There­fore, the board finds that the date on which the cause of compli­ance was removed was the date when the repre­sen­tative actu­ally learned from the board's summons to oral pro­cee­dings that the statement of grounds had been trans­mitted in­completely. As the board's summons was posted on 5 Au­gust 2014, the appellant's request for re-estab­lishment of rights filed on 26 September 2014 was made within the time-limit prescribed by Rule 136(1) EPC.

3. The request for re-establishment is therefore admissible.

The allowability of the request for re-establishment

4. The appellant has argued that, as required by the ju­ris­­prudence of the boards of appeal, the se­cre­tary was a suitable per­son, properly supervised in the task to be performed, and that the representative had exercised reasonable su­pervision over the secretary's work. Also the re­pre­sentative herself had a hitherto flawless record. Thus, the two errors were uncharacteristic and isolated mis­takes in an otherwise secure system. The appellant did not however give any specific reasons as to why the two errors had occurred in the present case.

5. The board has no doubts regarding the professional qua­lifi­ca­tions of the secretary and no reason to question the quality of her supervision by the representative or the reliability of the filing procedure as described. However, in view of the following, the question of whe­ther the secretary's mistake can be excused need not be decided in the present case.

6. The representative argued that, according to the de­scribed procedure, she clicks through every page of the docu­ments to be transmitted before she electronically signs them (see point VII c) above, step iii)). This corres­pon­ded to leafing through a paper submission page by page before signing it by hand.

6.1 The board agrees that this is a reasonable way of checking whether the representative is signing the right documents. More than that, the board considers that it is the representative's responsibility and ob­li­gation to make sure that what is signed is precise­ly what is meant to be signed.

6.2 The representative argued that she failed to spot the incompleteness in the documents she signed despite exer­cising all due care as required by the circum­stan­ces. The representative thus effectively asked the board, by way of re-establishment, to excuse the re­presentative's mistake of signing the wrong documents.

6.3 The representative referred to T 1095/06 in order to support her case. This decision dealt with the question of whe­ther "re-establishment may be possible even in the event of a culpable error on the part of the assis­tant, if the professional representative is able to show that he has chosen for the work a suitable person properly instructed in the tasks to be performed, and that he has exercised reasonable supervision over the work" so that the error can be considered "an isolated error in an otherwise satisfactory system" (see T 1095/06, reasons 5). The decision stated (reasons 6) that the pertinent jurisprudence could not "be extended to everything that can be described as an 'isolated mis­take'" and that, specifically, this jurisprudence could not "be relied on to ignore a failure to act by the professional representative himself, unless there are special circumstances which make the failure to act compatible with taking all due care."

6.4 The board notes that the representative's error is substantially inde­pen­dent of the specific procedure in place for elec­tro­nic filing, since it would arise in the same way if the representative worked on her own and without the support of a secretary.

6.5 The board need not decide whether the representative's mistake in question is in principle compatible with all due care. It notes however, that the signing of docu­ments is an act that requires particular care on the representative's part, especially when the signature relates to the last legal remedy against an adverse de­cision as is, in the present case, the appeal against the decision by the examining division to refuse the application. The board therefore considers that signing the wrong documents is incompatible with all due care unless special circumstances are in­voked which could justify the representative's mistake in a particular case, thus following the cited reasons of T 1095/06.

6.6 In the absence of such special circumstances the board comes to the conclusion that the representative did not take all due care required by the circumstances in the process of filing the grounds of appeal. The request for re-establishment in the time limit for filing the statement of grounds of appeal is therefore to be refused.

The admissibility of the appeal

7. According to Rule 99(2) EPC, the appellant, in the statement of grounds of appeal, shall in particular indicate the reasons for setting aside the decision impugned, or the extent to which it is to be amended (emphasis by the board).

7.1 The letter of 11 April 2014 contained no reasoning as to the substantive merits of the amended claims. The grounds of appeal do not specify whether the decision is challenged nor, if so, to what extent and why. They also fail to specify whether the amendments made to the claims are meant to overcome the reasons given in the decision or, if they do, why they are deemed sufficient in this respect.

7.2 This assessment, communicated to the appellant with the summons to oral proceedings, was not challenged by the appellant either in writing or orally.

7.3 Therefore, the board concludes that, due to the absence of any reasons, the letter filed on 11 April 2014 does not satisfy the requirements of Rule 99(2) EPC regar­ding the grounds of appeal so that the appeal has to be rejected as inadmissible.

Order

For these reasons it is decided that:

1. The request for re-establishment of rights is refused.

2. The appeal is rejected as inadmissible.

This decision has European Case Law Identifier: ECLI:EP:BA:2014:T110114.20141212. The whole decision can be found here. The file wrapper can be found here. Photo "Signature" by Sébastien Wiertz obtained via Flickr under CC BY 2.0 license.