D 0006/82 (Re-establishment of rights) of 24.2.1983

Summary of Facts and Submissions

I. The appeal is directed against the decision of the Examination Board for the European Qualifying Examination for professional representatives before the European Patent Office dated 10 March 1982 again finding, after reconsideration, that the appellant had not passed the 1979 European Qualifying Examination.

That Decision was despatched on 10 March 1982 by registered letter with advice of delivery to the private address given by the appellant. The appellant's mother confirmed in the advice of delivery that she had received the communication on 11 March 1982.

II. On 22 April 1982 an appeal bearing the date 8 April was filed with the EPO. By a letter from the EPO dated 26 April 1982, the appellant was notified that he had failed to comply with the time limit. By letter dated 10 May 1982, received at the EPO the same day, the appellant claimed that the transmittal of the Decision to his mother did not constitute valid notification. The Decision had not been transmitted to him by his mother until 7 April 1982. In the alternative he sought re-establishment of rights in respect of the period for filing the appeal and paid the appropriate fee. In support of that claim he chiefly submitted that he had already prepared the appeal on 8 April. He had waited before sending it off because he wanted to check whether he could file a Statement of Grounds of Appeal even without having inspected the file as claimed in the appeal. On 16 April he had decided that he would send off the appeal without amendment and had put it in an envelope ready for posting. He wanted to put the envelope in the letter box himself. However, in the course of that particularly busy working day, the envelope had slipped amongst other papers and was not discovered and despatched until 21 April.

III. In the oral proceedings on 24 February 1983 the appellant repeated his submissions and asked that his application for re-establishment of rights in respect of the period for appeal be granted.

Reasons for the Decision

1. The admissibility of the appeal depends on whether it was filed in due time. That in turn depends on when the contested Decision was validly notified, and thus when the period for filing the appeal expired and whether - that is if the appeal was filed out of time - the claim filed in the alternative for re-establishment of rights can be granted.

2. The contested Decision was despatched on 10 May 1982 to the appellant's private address. In principle, pursuant to Article 23(1) of the Examination Regulation in conjunction with Rule 78(3) EPC, the Decision is therefore deemed to have been delivered on 20 March 1982. If that is the case, the period for filing the appeal expired on 20 April 1982 and the appeal received on 22 April 1982 must be regarded as out of time.

3. The time limit must be calculated in a different way only if the appellant can show, pursuant to Rule 78(3) EPC, that the Decision "failed to reach the addressee or has reached him at a later date". But pursuant to Rule 78(5) EPC in conjunction with Article 51 of the Postordnung (Postal Regulations) of the Federal Republic of Germany, delivery to the appellant's mother constitutes delivery within the meaning of Rule 78(3). The fact is therefore immaterial that the EPO's letter did not reach the appellant in person until 7 April 1982.

4. It is now necessary to consider the possibility of re-establishment of rights. The initial question is whether appeals under Article 23 of the Examination Regulation are, in general, directly subject to the EPC provisions on appeals (Arts. 106 to 112) together with the "common provisions governing procedure" (Arts. 113 to 126) or whether they are subject to the procedural provisions of the Regulation on discipline (OJ EPO 1978, p. 91), supplemented by the Additional Rules of Procedure of the Disciplinary Board of Appeal of the European Patent Office (OJ EPO 1980, p. 188; hereinafter "the Additional Rules"), under which the legal provisions of the EPC are applicable when reference is made thereto.

5. The answer to this basic question will determine whether the application for re-establishment of rights is governed by Article 122 EPC or Article 24(2) of the Regulation on discipline. There are differences of substance between those provisions: under Article 24(2) of the Regulation on discipline the period for filing the request for re-establishment of rights is one month after removal of the cause of non-compliance in contrast with the two months allowed under Article 122 EPC. Furthermore, if Article 24(2) of the Regulation on discipline is applicable, no fee is payable for the application for re-establishment of rights.

6. Article 23 of the Examination Regulation does not specify what procedural provisions are applicable to appeals in connection with the examination, but it does provide that a decision on such appeals falls within the jurisdiction of the Disciplinary Board of Appeal. This is an initial indication that the procedural provisions laid down by the Regulation on discipline for procedure before disciplinary bodies is applicable. The provisions of the Regulation on discipline were not specifically drawn up to cover appeals regarding examinations and are in part not adapted to that purpose. This applies a fortiori to EPC provisions, Article 106(1) onwards, which were primarily intended for appeals on questions of patent law. The Regulation on discipline and the Examination Regulation do have something in common insofar as both appeal procedures concern highly personal matters regarding the appellant's professional position. But the procedural provisions of the Regulation on discipline are addressed not only to the parties but also the disciplinary bodies, in appeals, therefore, to the Disciplinary Board of Appeal. Accordingly this Board already decided on 15 December 1982 in case D 05/1982 (OJ EPO 5/1983, p. 175) that in view of its special composition under Article 10 of the Regulation on discipline, cases concerning examinations or disciplinary matters cannot be referred to the Enlarged Board of Appeal of the EPO.

7. Since the application for re-establishment of rights is thus governed by Article 24(2) of the Regulation on discipline, it is in the light of that provision and not directly under Article 122 EPC that the Board must consider whether the application can be allowed. The first question is whether the application was filed in due time. Under Article 24(2) of the Regulation on discipline the appellant should have filed his application "within one month from the removal of the cause of non-compliance with the time limit". As a rule removal of the cause of non-compliance with the time limit within the meaning of Article 24(2) of the Regulation on discipline (or Article 122(2) EPC) means knowledge of the non-compliance with the time limit as a legally relevant event with the possible consequence of loss of rights. In determining whether the application for re-establishment of rights was filed in due time, the question is not whether, on a proper understanding of the legal position, the applicant should have recognised the failure to comply with the time limit at an earlier time. On a proper understanding of the legal position under Rules 78 and 83 EPC, the appellant should already have realised that the time limit for appeal expired on 20 April 1982 when the delivered decision was handed to him by his mother on 7 April 1982. At the time, however, he was under an apprehension that the delivery to his mother, which pursuant to Rule 78(3) EPC is deemed to have been made on 20 March 1982, was not legally valid.

It was not until the letter from the EPO dated 26 April 1982 that he was notified of the fact of non-compliance with a time limit producing legal consequences. Since, in his letter dated 10 May 1982, received at the EPO on the same day, he had already filed an application in the alternative for re-establishment of rights, he complied with the one-month period for filing that application under Article 24(2) of the Regulation on discipline.

8. The appellant has not taken all due care required by the circumstances as stipulated in Article 24(2), first sentence, of the Regulation on discipline. The information on appeals in the contested decision contained not only a reference to Article 23 of the Examination Regulation but also a reference to Rule 78(1) EPC. But even in the absence of such information (cf. Rule 68(2), third sentence, EPC) neither ignorance of the provisions applicable nor a mistake as to the resulting legal position can justify re-establishment of rights. The obligation to take "all due care required by the circumstances" means that persons engaged in proceedings before or involving the European Patent Office must acquaint themselves with the relevant procedural rules. Furthermore, after the contested decision was delivered to the appellant (on 7 April 1982), he still had time to file an appeal at least as a precaution to observe the deadlines before the expiry of the time limit for appeal on 20 April 1982. He should not have omitted to do so merely because he first wanted to check whether he had to examine the file in order to state the grounds for the appeal. That was a matter concerning the statement of grounds for the appeal for which a further month is allowed by Article 23(2), second sentence, of the Examination Regulation.

ORDER

For these reasons, it is decided that:

1. The request for re-establishment of rights in respect of the period for filing the appeal is refused.

2. The appeal is rejected as being inadmissible.

3. Reimbursement of the fee for re-establishment of rights is ordered.