Friday, March 30, 2018 T 0198/16 - Yea or Nay to Intention to Pay?

Is the mere intention of an appellant to pay the appeal fee, as expressed by reference to EPO Form 1010 ("Payment of fees and expenses") in the Notice of Appeal, enough to authorise the EPO to debit appellant's deposit account (holding sufficient funds), when said  Form 1010 has erroneously not been sent together with the Notice?

In this examination appeal, the Board held - deviating from T 1265/10 - that regardless of whether or not the EPO would have access to sufficient the funds of the party intending to pay, such an intention can never be considered equivalent to an order.

Referring to R 18/13, the Board further found that - different from a mistake made by an assistant - the mistake made by the representative to not explicitly instruct his assistant to pay the appeal fee and to not properly review the electronic receipt is a mistake that cannot be excused. Accordingly, the request for re-establishment of rights was refused.

As a result, the appeal was deemed not to have been filed.

Catchword:

1. The intention to authorise debiting of the deposit account does NOT already allow the EPO to act on such authorisation and carry out such intent where the EPO, under the deposit account system, already holds such money in trust (deviation in particular from T 1265/10, at point 15), (see point 3.4.3 of the quotation from the summons under point 1 of the Reasons).

2. A representative must give express and clear instructions to an assistant to the effect that the appeal fee has to be paid. It is not enough to rely on the assistant's deducing the duty to file the payment form from the notice of appeal, which includes the sentence: "The appeal fee is paid via the enclosed EPO form 1010."

Tuesday, January 16, 2018 T 2450/16 - Relying on guidance from epoline

Screenshot of epoline at its introduction in 2000

This case concerns the request of re-establishment of rights under Article 122 EPC in respect of the period for filing the notice of appeal against the decision of the Examining Division to refuse a European patent application.

The applicant's instructions to file an appeal were transmitted to the administrative assistant in charge of the present file. The assistant was, however, confronted with completing this task in epoline, which according to the applicant/appellant contained no clear indications concerning the initiation of an appeal procedure, apart from the payment of the appeal fee.

The assistant thus did not find any guidance for filing an appeal other than payment of the appeal fee. In paying the appeal fee, the assistent went ahead firmly but wrongly believing from epoline that this was all that was necessary. She therefore wrongly found it superfluous to consult another administrative assistant or an attorney/engineer. According to the applicant/appellant, this constituted the isolated mistake that had occurred in the present case.

As one may expect, the Board however finds that it would have been the responsibility of the representative in the circumstances to give specific and clear instructions on the filing of an appeal to the assistant.

Thursday, October 05, 2017 T 2016/16 - All due care: assistant well-trained but not properly instructed/ not properly supervised by the patent attorney

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.