Rule 112 EPC: Noting of loss of rights

Text of Rule 112 EPC

In plain English

Many EPC time limits carry an automatic sanction: the application is “deemed to be withdrawn” or a right is lost, without any decision. Rule 112(1) requires the EPO to tell you when that happens, in a communication usually called a noting of loss of rights.

There are three ways back, and which one fits depends on why the right was lost.

If the EPO is wrong, for example because the fee was in fact paid in time, apply for a decision under Rule 112(2) within two months. If the EPO agrees, it simply says so; if not, it issues an appealable decision. This period itself cannot be rescued by further processing (Rule 135(2)).

If you missed a time limit, further processing is the normal remedy before grant (Article 121, Rule 135). Request it within two months of the communication by paying the fee and completing the omitted act. No reason is needed. The fee is 50% of the late fee or a flat €315 for other acts (Rules relating to Fees, item 12). Some periods are excluded, including the priority year and the periods under Rules 56, 62a, 63, 64 and 164.

Where further processing is not available, re-establishment of rights may be (Article 122, Rule 136). You must show that all due care required by the circumstances was taken, and file within two months of the removal of the cause of non-compliance, at the latest one year after the missed time limit; for the priority period, within two months of its expiry. The fee is €790 (item 13).

Since 1 November 2023, EPO documents are deemed delivered on the date they bear, so the two-month periods run from that date (Rules 126(2) and 127(2)).

Deadlines and fees

Common objections

Pendency for divisionals

Once an application is deemed withdrawn, it is no longer pending for Rule 36 purposes. If the loss is remedied, it is treated as pending throughout, so a divisional filed in the meantime can stand (Guidelines A-IV, 1.1.1).

Due care not shown

Re-establishment fails without evidence of a normally satisfactory monitoring system and an isolated mistake. Build the evidence while memories are fresh.

Drafting and prosecution tips

• Read every Rule 112(1) communication on the day it arrives and decide the remedy at once; the two-month clocks start immediately.
• Prefer further processing where it is available: it needs no reasons and is cheaper and quicker than re-establishment.
• Keep docketing records that would show due care, in case re-establishment is ever needed.