6th apr, 2008

Re-establishment decision by Boards of Appeal increase obligation of representatives

Re-instatement of rights in patent cases is one of my personal hobbies (Danish article forthcomming). A new decision (T473/07) by the EPO Board of Appeal centers upon an interesting question: How much can you rely on automated systems when calculating time limits? 

The answer is….You can´t.  In the present case a legal firm had created a program for calculating time limits which have worked well for years. Until the day that a programming error is discovered when it results in a erroneous calculation of a time limit and thereby a loss of rights. The system works in a way where a date is entered an appeal date calculated and checked by a clerk. Later the date of receiving the EPO communication is checked by the responsible representative….but he does not check the calculation.  The BoA thinks that the representative should have checked the date because it “belongs to the general duties of the representative to perform his own calculation of time limits, irrespective of the reliability of the assistant.” And “the duty to perform his own calculation of time limits remains with the representative if he receives the file on his desk in time, and cannot be completely delegated from the representative to a support infrastructure, whether this is implemented by human assistants or a computerised records system, because the representative bears the final responsibility for the case.”  Im pretty much a hard liner myself when it comes to the “all due care” obligation but I think that the BoA is stretching it a bit. The error stems from a programming error in a system created under the supervision of qualified people. If the representative cannot rely on a computer system but have to calculate all time limits why have the system at all??

What the EPO is saying is that the process that the Representative has created is not enough to be considered “adequate”.   

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