Missed a deadline? Second chances at the EPO

Missing an EPO deadline doesn't always mean the end of the road. Susana Rodrigues of Inventa explores when re-establishment of rights is available, and what recent appeal decisions reveal about the office’s approach.

Under the European Patent Convention (EPC), applicants and patent proprietors have remedies at their disposal if they lose their rights due to a missed time limit before the European Patent Office (EPO).

Depending on the cause of the missed deadline and the time that has lapsed since, it may be possible to recover those rights.

To successfully request a re-establishment of rights, two critical conditions must be met:

• A timely request: the request must be filed within the applicable time limit, usually two months or one year, depending on the specific act concerned.
• Valid reasoning: compelling reasons for missing the deadline must be provided by the applicant.

Under Article 122(1) EPC, a request for re-establishment of rights is a remedy of last resort. It allows an applicant or a proprietor to recover lost rights only if they missed an EPO deadline despite having taken “all due care required by the circumstances”.

What constitutes ‘all due care’?

The EPO interprets ‘all due care’ strictly, but generally recognises certain excusable situations:

• An isolated mistake in a normally satisfactory system: This is one of the most commonly invoked instances. It covers a single, uncharacteristic error made by a well-trained, experienced, and properly supervised assistant. To succeed, the applicant must prove that their docketing system is robust and features built-in cross-checks.
• Breakdowns in communication with intermediaries: The communication chain between an applicant, a foreign instructing attorney (eg, in the US or Japan), and a European representative is prone to failure. If an instruction to pay a fee or file a response is lost in transit or misunderstood, it can lead to a missed deadline. In these cases, all parties in the chain must demonstrate they exercised due care.
• Sudden and severe illness: This can happen to anyone and is usually straightforward to prove. If a sole practitioner or a key inventor falls suddenly and severely ill, preventing them from working, delegating duties, or communicating with colleagues, the EPO may grant re-establishment. Routine illnesses are generally not accepted as valid excuses.
• Force majeure events: These are unforeseeable and unavoidable external events, such as catastrophic IT failures, natural disasters, postal strikes, or sudden office fires that destroy files and prevent compliance with a time limit.

A critical note on ‘due care’

 The core of any Article 122 EPC request is proving that the error was a genuine anomaly. Re-establishment is routinely rejected if the EPO determines the missed deadline was caused by ignorance of the law, a fundamentally flawed or unsupervised docketing system, chronic understaffing, or financial difficulties (unless the applicant can prove they actively and carefully sought financial aid).

Recent case studies: Where requests failed

Let's look into a couple of recent cases where a request for re-establishment of rights led to a refusal decided by a Board of Appeal.

T 1770/23 – Guidance system and automatic control for vehicles

• Decision issued: April 23 2026
• Time limit missed: The applicant missed the deadline to pay the ninth-year renewal fee and the additional late fee within the six-month grace period. The original fee was due on February 29 2024 but was not paid until October 2 2024. Because an appeal regarding the refusal of the patent application was ongoing, the Board of Appeal was the competent department to decide on the request.
• The ‘all due care’ argument: The appellant argued the delay was a simple “calculation error”, resulting in the payment being made on the correct day but in the wrong month. To support their claim of due care, they later provided evidence of a monitoring system, including screenshots of Outlook calendar reminders.
• The outcome: The board rejected the request, ruling it inadmissible, and the patent application was deemed withdrawn. The board reasoned that the initial request contained only a generic statement about a calculation error, failing to provide specific facts demonstrating how due care had been exercised. By the time the detailed evidence (the Outlook screenshots) was provided, it was too late to be admitted.

T 1029/23 – Coating composition

• Decision issued: May 5 2025
• Time limit missed: The appellant (patent proprietor) missed the two-month time limit under Article 108 EPC to file a notice of appeal and pay the appeal fee. This time limit was triggered by the opposition division's decision on July 19 2022 to revoke the European patent.
• The ‘all due care’ argument: The appellant argued this was an “isolated fault within a normally satisfactory system”. They claimed that their former representative in Switzerland never received the EPO’s registered revocation letter. While the representative was on holiday, a landlady collected his mail, but no registered letter or collection note was found. However, during oral proceedings, the appellant changed their statement, admitting the representative had actually failed to receive four consecutive EPO communications.
• The outcome: The board rejected the request. They reasoned that missing four consecutive communications contradicted the ‘isolated fault’ argument, indicating instead a systemic series of faults. Furthermore, the board noted that even if due care had been proven, the request was filed too late, missing the two-month window from the removal of the cause of non-compliance (Rule 136(1) EPC).

A successful re-establishment

Fortunately, there are happy endings, too. Let’s examine a recent success story.

T 0549/24 – A bathing apparatus with recycling system

• Decision issued: January 19 2026
• Time limit missed: The applicant missed a June 24 2020 deadline to request further processing after initially failing to reply to a communication under Rule 71(3) EPC (Intention to grant a European Patent).
• The ‘all due care’ argument: The appellant provided evidence of a comprehensive monitoring system, using online spreadsheets and regular update meetings. Due to deteriorating health, the company’s CEO had to delegate patent matters to a personal assistant, though the CEO continued to check the portfolio's status. The missed deadlines were entirely attributed to the assistant’s deliberate deception. The assistant had created an unauthorised, private Gmail account mimicking a company address to correspond with foreign agents, successfully hiding the correspondence from the CEO and bypassing company servers. The assistant also falsified internal IP records to hide their negligence.
• The outcome: The Board of Appeal ruled in favour of the appellant. They decided that the CEO’s supervision met the standard of ‘all due care’ and that the assistant’s deliberate deception constituted exceptional circumstances. The original decision was set aside, and the appellant’s rights were successfully re-established.

Conclusion

From the summarised cases above, one thing is abundantly clear: when Article 122(1) EPC requires a deadline to be missed “in spite of all due care”, the EPO interprets this requirement quite literally. To succeed, applicants must be prepared to provide immediate, detailed evidence that their systems are rigorous and that the failure was a genuine, unavoidable anomaly.

Susana Rodrigues is a patent consultant at Inventa, and can be contacted at srodrigues@inventa.com

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