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.