Tuesday, 25 June 2013

Last Call for British Representatives Still at 11pm

Though this blogger is not as acquaintaned with the customs in british pubs as some of his colleagues, he knows that the closing time of brithish pubs has been more or less abandonded in 2005 but is still observed (with some degree of flexibility) in some more traditionalist venues closing about one hour earlier than their continental counterparts.

The EPO counts among these venues, as reported by Laurent Teyssèdre on his blog "Le Blog du Droit Européen des Brevets" here.

The statement setting out the grounds of appeal was received at the EPO in electronic form at three minutes past midnight (CET) on 29 March 2011, i.e. three minutes after expiry of the four-month time limit for filing the grounds of appeal under Article 108 EPC but was sent from Cambridge at 11.03pm (British Summer Time)  on  29 March 2011.

The board confirms that the relevant time is the Central European Time applicable in Munich and The Hague but turns out to be unexpectedly generous in granting re-establishment of rights with regard the non-observation of the curfew:

The Board considers the appellant's request for re -establishment of rights as regards the time limit for filing the notice appeal allowable ( Article 122(4) EPC), in particular because the appellant has shown that the non - observance of the time limit was not caused by lack of due care but rather by a justifiable human error of the representative (emphasis added).
A closer look reveals that the generosity does not go so far that a delay of 3 minutes is considered excusable per se. Rather, the human error consisted in that the representative had missed the fact that the Central Europen Time had switched from summer- to winter-time on march 27 and had relied on the EPO web-site for the purpose of determining what time it was on the continent. The appelant argued:

The board did not further scrutinize the degree of diligence required by professional representatives to know the exact local time at the EPO office because the appeal was finally rejected on other grounds.

For the time being, it remains advisable for european patent attorneys residing in Great Britain to use a raido-controlled clock set to CET when planning last-minute filings.


Tufty the Cat said...

It was actually Cambridge, not Oxford (although I believe they share the same time zone). I don't think it would have mattered if it had been one second after midnight. The rules are very strict on this point. The decision has been summarised and commented on in more detail on K's Law here

Michael Thesen said...

Sorry for having mistaken Oxford for Cambridge. I will correct this.

To the best of my knowledge, this decision is the first one where the right to do human errors was conceded to professional representatives in a re-instatement procedure. Human errors are usually the exclusive domain of office clerks ;-)