Completion of an omitted act
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215
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The EPC makes provision for omitted acts to be completed, depending on the nature of the missed time limit.
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Guid. E-VIII, 2
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216
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The easiest missed time limits to make good are those imposed on the applicant during the grant procedure by departments of the EPO such as the Receiving Section or the examining divisions, ie not those laid down by the EPC itself.
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Art. 121
Guid. E-VIII, 2.1
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If a time limit set by the EPO is missed, it is generally sufficient for the applicant to request further processing of the application. The request must be filed in writing within two months of the date on which either the decision refusing the application or the communication that it is deemed withdrawn is notified. The omitted act must be completed within that period. The request is not deemed to have been filed until the fee for further processing has been paid. No reasons need be given for the request.
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217
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If any time limit other than those mentioned in point 218 is missed, the applicant or proprietor may apply to have his rights re-established (restitutio in integrum); but this application will be granted only if he was unable to meet the time limit despite taking all due care.
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Art. 122
Guid. E-VIII, 2.2
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If the applicant or proprietor acts through a representative, an application for re-establishment will be granted only if the representative has taken the care demanded of the applicant in Article 122(1).
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218
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Re-establishment of rights is expressly excluded in respect of failure to comply with time limits for filing fee, search fee and designation fee payment (allowing for the grace period under Rule 85a, see point 116), with the priority period, and with the time limit for filing the request for examination (allowing for the grace period under Rule 85b, see point 153) or the application for re-establishment of rights (see point 219).
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Art. 122(5)
Guid. E-VIII, 2.2.4
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219
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The application for re-establishment of rights must be filed in writing within two months from removal of the cause of non-compliance. The omitted act must be completed within the same period. The application is admissible only within the year immediately following the missed time limit. In the case of non-payment of a renewal fee, the grace period specified in Article 86(2), with its attendant additional fee, is included in the one-year period.
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Art. 122(2), (3)
Guid. E-VIII, 2.2.5
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The application must state the grounds on which it is based, and must set out the facts on which it relies. It is not deemed to have been filed until the fee for re-establishment of rights has been paid.
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D. The European patent grant procedure
Missed time limits
