1. The case is ready for decision, which is to be taken in written proceedings on the basis of the contested decision to be reviewed and on the basis of the appellant's written submissions, without holding oral proceedings, pursuant to Article 12(8) RPBA 2020 and Articles 113 and 116 EPC. The appellant did not request oral proceedings and the Board does not consider it expedient to hold oral proceedings of its own motion.
2. The appeal is inadmissible for lack of substantiation, in the statement of grounds of appeal, of the reasons for setting aside the impugned decision (Rule 99(2) EPC). According to established case law, a statement of grounds referring generally to the submissions made at first instance cannot be considered sufficient for the purposes of Article 108, third sentence, in conjunction with Rule 99(2) EPC.
3. Yet even if the appellant's submissions before the Receiving Section were to be taken into account, the appellant's main request that the decision of the Receiving Section to refuse the request for re-establishment be set aside is not allowable.
4. The decision of the Receiving Section to refuse the request for re-establishment is correct.
5. The Board agrees with the Receiving Section that the conditions under Article 122 EPC for re-establishment of rights, namely that in spite of all due care required by the circumstances having been taken, the applicant was unable to observe the time-limit, were not fulfilled (for general comments on due care, see Case Law of the Boards of Appeal (CLB), 10th edition, 2022, III.E.5.2). The appellant has not demonstrated that the non-compliance was the result of exceptional circumstances (see CLB, III.E.5.3), nor has it shown that it was the result of an isolated mistake within a normally satisfactory monitoring system (see CLB, III.E.5.4).
6. The Receiving Section largely dealt with the appellant's arguments in Reasons 8 to 11 of the decision under appeal. In point 8, it correctly pointed out that no evidence had been provided for the fact that the European representative had sent reminders and contacted the applicant before the scheduled deadline. The Board agrees with the explanations in point 9 of the decision that the reference to the holidays in XX is not an acceptable reason for justifying overlooking the time limit. The Board notes, in particular, the appellant's argument that the cited holidays made communication difficult in the period between 5 September and 30 September. This cannot explain why the two-month time limit was missed. Furthermore, the Board agrees with the evaluation of the Receiving Section in point 10 of the decision that the appellant's statement that the main reason why the deadline was overlooked was an unfortunate human error was too unspecific to be taken into consideration. This also applies to its reference to the Covid pandemic as cited in point 11 of the decision.
7. Moreover, the appellant's auxiliary request, i.e. that the application be upheld in part, namely without the deficient pages, is not allowable.
8. The appellant argued in its statement setting out the grounds of appeal that the application still had 29 figures which satisfied the requirements of former Rule 46(1) EPC ("now deleted"). Therefore, the present application could not be considered to have failed to satisfy the requirements of Article 90 EPC in its entirety.
9. Article 90(5) EPC stipulates that a European patent application shall be refused if a deficiency noted in the examination of formal requirements is not corrected, unless a different legal consequence is provided for by the Convention. The maintenance of the application in part (without the deficient drawings) is not provided for by the EPC.
10. As a side remark, the Board notes that former Rule 46(1) EPC, on minimum margins on sheets containing drawings, was replaced by new Rule 49(2) EPC and the decision on presentation requirements for drawings, without substantive amendments (see Decision of the President of the EPO dated 25 November 2022 on the presentation of applications and other documents, OJ EPO 2022, A113, in particular Article 1, Form and content of the drawings).
11. The Board further notes that according to point 2 of the order of the decision under appeal, the application was deemed to be withdrawn. This declaration is not decisive and does not have a binding effect. The legal effect of rejecting the request for re-establishment is that the decision to refuse the application (which was not appealed) remains in legal force.
12. As a result, the appeal is unallowable and has to be dismissed.
