What is all due care in stressful situations? (T 0600/18)

Many patent attorneys will be working from home during this time.  A recent decision from the Board of Appeal (dating back to 2018), considers the criteria for all due care in stressful situations, in which were employees are sick or working from home.  

Imagine for a moment that you are a patent attorney in charge of a case for which there is an appeal deadline falling due tomorrow, and the appeal fee needs paying. In the office, there are only 3 computers on which the EPO online filing software is installed. The support staff who normally use these computers (and who normally do all the online filing) are not at work today. On top of this, a fierce storm is brewing. There is pressure to allow all patent attorneys and support staff to leave work early so that they can get home safely before the storm. Everyone is also planning on working from home the following day. You need to pay the appeal fee today. How stressed would you be?

This was the situation considered in T 0600/18. The Board of Appeal assessed whether a procedural error made by a patent attorney in just such a situation was an isolated mistake made despite all due care, and therefore satisfied the requirements for re-establishment of rights (Article 122 EPC). The case related to an appeal of the decision of the Opposition Division to maintain BAE systems European patent EP 2490936 in amended form. An attempt was made to pay the appeal fee the day before the deadline. However, the patent attorney responsible for the case attempted to pay the fee by paper debit order, a method of payment that was no longer accepted by the EPO (following supplementary publication 5, OJ EPO 2017, published the previous year). The patent owner and would-be appellant, BAE, therefore failed to pay the appeal fee in time. BAE requested re-establishment of the right to file the appeal.

A series of unfortunate circumstances

Why did BAE not pay the fee in the normal way? BAE requested re-establishment of rights (Article 122 EPC) on the grounds that there had been an unfortunate combination of circumstances leading to the failure to pay the fees. These circumstances are eerily pertinent to the present times.

The Beast from the East (2018)

For security reasons, the EPO's online filing (OLF) was not available on the computers of most BAE employees. The software for paying EPO fees was only available on the BAE computers of three paralegals who were responsible for EPO filings. On the day before the deadline for filing the appeal, one of the paralegals was sick, one was on holiday and the third was absent due to unforeseeable personal reasons. Consequently, none of the staff normally responsible for the payment of fees were present on the day before the deadline to file the appeal.

At the same time, a storm was brewing in the form of a deep depression sweeping its way across the Atlantic. Blizzards, strong winds and bitter cold were forecast across the UK the following day (the Beast from the East meets Storm Emma). As patent trainees doing their EQEs at the time, and remembers the treacherous travel conditions. In view of the imminent storm, a decision was made that BAE's in-house attorneys and paralegals would not attend work the following day. There was also pressure for staff to leave work early, in order that they could get home safely before the storm. Under the pressure of the imminent storm and the absence of the staff who usually paid the fees, the patent attorney responsible for the case made the error of paying the fee using debit order form 1010, a payment method no longer accepted by the EPO. BAE argued that this was an isolated error, and that re-establishment should be allowed.

An isolated error in an otherwise well-functioning system?

Re-establishment of rights at the EPO is only granted if the party can demonstrate that the loss of rights occurred despite "all due care" having been taken. If the mistake was due to an isolated error by an assistant in a well-functioning system, this may satisfy the "all due care" test. However, isolated errors by patent attorneys (even none European attorneys), are generally considered to demonstrate lack of all due care.

BAE argued that the mistake in paying the fee had been an isolated error in an otherwise well-functioning system. BAE argued that the system of having only three computers with the EPO software normally "worked consistently to maintain its portfolio of European patents". Furthermore, BAE argued that the patent attorney responsible for the case was aware of the change to the rules regarding fee payments, having attended the EPO's seminar 'Guidelines2Day'. The patent attorney's error, BAE argued, was therefore an isolated one brought on by the stressful nature of the circumstances.

The Board of Appeal were not convinced by BAE's arguments. The Board noted that the absence of staff and the upcoming storm were merely the reasons why the patent attorney acted himself. The Board argued that they did not explain why the patent attorney had made the error of paying the appeal fee by the wrong method.

The Board of Appeal accepted that the weather had been bad (as evidenced by a Guardian article at the time). However, the Board noted that, on the afternoon in question, "the situation was not so extreme that there was an immediate need to evacuate the office or the like". As such, the Board reasoned, "the patent attorney in charge of the case was still able to perform his duties, albeit under pressure to let his staff leave early enough to get home safely". The Board did not consider the stress faced by the attorney as being severe, and could not be "equated with one where a patent attorney was incapable of taking sound decisions due to sudden serious illness or a sudden and unexpected bereavement, as in cases T 525/91 or T 387/11". The Board of Appeal instead pinned the majority of the blame for the error on the patent attorney's lack of knowledge of the appropriate procedures (r. 2.5).

Working from home

The lessons from this case are very pertinent to the present times. The majority of patent attorney firms will have the technology in place to allow all of their patent attorneys and support staff to work remotely. The ability for employees to access document management systems and professional software from home has become critical in the past week. The few firms without these provisions will already in place will be struggling.

Firms are also facing the risk of the large-scale incapacity of the staff members responsible for key tasks. The EPO has recognised the unprecedented nature of the current circumstances, by extending all deadlines from 15 March 2020, until the 17 April 2020. However, no end of the crisis is yet in sight. T 0600/18 is reminder that the EPO may not be forgiving of errors made by professional representatives, even in stressful situations. Instances of missed deadlines in the COVID-19 crisis will undoubtedly be assessed on a case-by-case basis.