Some tips from the case law on general internal procedures. T 1764/08 deals with a case in where the grounds of appeal were filed electronically. The only problem was this was on 13 August 2008 and electronic filing of appeal documents was only permitted from 5 March 2009. So far, so “oops”.
What is interesting is the refusal of the request for re-establishment under Article 122(1) EPC. According to Article 122(1) EPC an appellant can only have his rights re-established if he was unable to observe the time limit for filing the statement of grounds of appeal in spite of all due care required by the circumstances having been taken. In this case it appears the internal procedures didn’t convince the Board:
17. Taking into account the submissions and evidence on file, the board has difficulty in acknowledging that, at the relevant time in question, the representative’s firm had an established system of checks to ensure that mistakes such as happened in the present case were avoided. It appears to the board that, although the assistants were generally instructed to use fax or regular mail for filing documents in appeal proceedings, there was no check or monitoring foreseen in the organisation of the firm as to whether these instructions were followed. It is clear from the representative’s submissions that the assistant relied merely on the representative’s instructions and, if the assistant did not receive any instruction, she “did what she was used to do, viz. send the letter to the EPO through epoline” (see the appellant’s letter dated 6 March 2009, page 2). This, however, speaks against a normally satisfactory system for monitoring the filing of appeals.
18. It is also the board’s view that filing an admissible appeal is not a routine task, but rather a complicated task which needs clear instructions from the professional representative to his assistant. In the present case, however, there is no evidence on file whether the assistant received instructions from the appellant’s representative for sending the statement of grounds of appeal to the EPO, and if so, what instructions. In particular a copy of the email allegedly sent together with the draft statement could not be provided to the board.
19. The board also considers that the assistant’s work should have been monitored as far as filing documents in appeal proceedings was concerned since at the relevant time the legal situation differed from that for filing documents in other proceedings before the EPO and the legal consequences for any failure were severe. In the board’s view the professional representative whose electronic signature was on the cover sheet should have checked whether the attached document could have validly been sent via epoline and should have instructed the assistant accordingly, in particular in view of the exceptional personal circumstances of the appellant’s representative, which were known within his office.
I guess the moral of this story is that it is essential to have documented internal procedures with suitable checks and balances (that are followed) to allow the emergency safety net of re-establishment to be of any use. Attorneys also cannot get away with blaming their assistants.