The applicant timely filed a notice of appeal and paid the appeal fee. However, the applicant missed the 4-month period to file the grounds of appeal, because the 4-month period had never been recorded in the internal electronic docketing system. With the late-filed statement of grounds, the applicant filed a request for re-establishment of rights in respect of the time limit for filing the statement of grounds of appeal was filed and the prescribed fee was paid. A well-trained, competent and experienced assistant, who has the CIPA Patent Administrator Qualification had overlooked to record the 4-month period and the responsible patent attorney did not think to check whether the period for filing the grounds of appeal had been logged in the docketing system. The Board concluded that, even with a system of double checking in place, the representative is not discharged from his or her duty to properly instruct and supervise the assistant (cf. T 1465/07, reasons 18, last paragraph). In the case at hand, the appellants have not shown that the assistant was properly instructed or that she was properly supervised. Thus, the appellants have not discharged their burden to prove the existence of a normally satisfactory monitoring system. The omission from the docketing system of the time limit for filing the statement of grounds can therefore not be said to equate to an isolated mistake in a normally satisfactory monitoring system. The request for re-establishment of rights is to be refused.
In this case the board of appeal has to deal with a common situation wherein a renewal fee has been missed and responsibility for payment was lying with the US attorney and a fee payment agency. In such a situation, when does the 2 month period for requesting re-establishment start?
The European patent attorney is of the opinion that the period starts when he is instructed to affect the payment. The board reviews the case law and concludes that if the loss of rights communication is received earlier, then this communication triggers the period. The request for reestablishment is now inadmissible for being filed too late.
