Restoration of rights in Community design applications (Restitutio in integrum)

Submitted by song on Sun, 01/12/2025 - 23:42

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In the case of a delay in the deadline or late payment of the annual fees in an EU Community Design application, you can try to re-establish the rights and restore the patent rights by requesting restoration of rights.

Restitutio in integrum: If, despite having taken all due care in the circumstances, an application has not been made within the prescribed time limit, a request for restoration of rights (restitutio in integrum) may be made, provided that the direct consequence of the failure to make the application within the prescribed time limit is the loss of rights or the loss of means of relief under the Regulation.

Rights are re-established only in exceptional circumstances that cannot be predicted empirically and are therefore unforeseeable and involuntary.

Examples of “all due care” requirements being met:

In principle, failure to deliver by postal or courier services does not involve a lack of due care on the part of the parties.
The degree of due care that a party must have shown to re-establish its rights must be determined in the light of all relevant circumstances. Relevant circumstances may include relevant errors made by the Office and their impact. Thus, even if the party concerned did not exercise all due care, reinstatement may be granted because of relevant errors made by the Patent Office.
Situations such as natural disasters and general strikes are considered to meet all due care requirements

Examples of when the "all due care" requirement is not met:

Document management errors made by company employees or by the computer system itself are foreseeable, so due diligence requires a system to monitor and detect any such errors.
The unique workload and organizational pressures on the company's employees do not meet the requirement of "due care"
The error in calculating the time limit does not constitute a special event that cannot be predicted based on experience
The head of the annual fee department monitors the performance of employees every day, and his mistake does not constitute an extraordinary incident
The absence of a key member of the accounting department cannot be considered an extraordinary or unforeseeable event.
Clerical errors in entering the closing date cannot be considered extraordinary or unforeseeable events
Misunderstanding of applicable law should not in principle be considered an "obstacle" to compliance with time limits
The right holder's delay in giving instructions is not an exceptional circumstance
Financial problems, bankruptcy and unemployment of the right holder's enterprise cannot be used as reasons to prevent the renewal of the annual fee.
The legal error of the agent does not constitute grounds for reinstatement, and the assistant's deletion time limit is not unforeseeable and does not constitute an extraordinary circumstance.

Time limit: The time limit for filing a request for restoration of rights is 2 months from the date on which the cause of non-performance of obligations is eliminated, or from the date on which the omitted behavior is completed; the latest time limit is 1 year from the date on which the time limit is missed.

The date on which the cause of non-compliance is eliminated is the first date on which the party knew or should have known the facts leading to the non-compliance. If the cause of non-compliance is the absence or illness of the attorney handling the case, the date on which the cause of non-compliance is eliminated is the date on which the attorney returns to work. If the applicant does not submit a renewal application or pay the annual fee, the 1-year period will be calculated from the date on which protection ends, not from the date on which the 6-month period expires.

Official fee: The applicant must pay the restoration of rights request fee within the time limit: EUR 200.

An application for "restoration of rights" covering multiple rights requires only one fee if all conditions are met. Otherwise, a separate fee must be paid for each design.

Language: In the registration procedure, the language indicated in the application must be used; in the opposition procedure, the language of the opposition procedure must be used; in the annual fee procedure, it can be any of the five languages of the competent authority. If the wrong language is used or the translation into the correct language is not submitted on time, the request for restoration of rights will be rejected as inadmissible.

Evidence: When filing a petition for reinstatement, the applicant must state the grounds upon which the petition is based and set out the facts upon which it is based. Since the granting of a petition for reinstatement is primarily based on facts, it is best for the applicant to present evidence in the form of an affidavit or affirmation. Statements made by the interested party himself or his employees are generally given less weight than independent evidence.