3.2. Remedies under the PCT applied by the EPO as designated Office
A decision of an examining division of 5 June 1984 (OJ 1984, 565) pursuant to Art. 153(2) EPC 1973 (see now R. 159(2) EPC) in conjunction with Art. 25 PCT and Art. 24(2) PCT concerned the authority of a designated Office under Art. 24(2) PCT to maintain the effect of an international application. The applicant had missed the time limit for filing the representative's authorisation set by the Japanese Patent Office acting as receiving Office. The EPO, acting as designated Office, excused the non-observance of time limits which had been set by the receiving Office for the correction of formal deficiencies in accordance with Art. 14(1)(b) PCT in conjunction with R. 26.2 PCT (Art. 24(2) and 48(2)(a) PCT). The examining division found that the time limit under R. 26.2 PCT was comparable to time limits set by the EPO under Art. 121 EPC 1973 and granted re-establishment of rights according to Art. 122 EPC 1973 in respect of the time limit under Art. 121(2) EPC 1973.
J 17/99 also concerned the application of Art. 24(2) PCT. The formerly applicable precautionary designation of EP in the international application was not confirmed within the prescribed period and was therefore regarded as withdrawn (former R. 4.9(b)(ii), (c) PCT, and Art. 24(1)(i) PCT), with the consequence that the effect of the international application under Art. 11(3) PCT – i.e. that of a European filing – ended on the same date. The Legal Board declined to exercise its discretion under Art. 24(2) PCT to maintain the effect provided for under Art. 11(3) PCT: when exercising that discretion as designated Office, the EPO had to apply the same rules and principles as for identical or comparable situations arising with direct European applications (here concerning correction of designations). This non-discriminatory approach was not only a fundamental principle of the PCT itself (see, for example, Art. 26 and 48(2)(a) PCT) but also a direct consequence of Art. 150(3) EPC 1973 (see now Art. 153(2) EPC). See also J 3/81, OJ 1982, 100; J 8/01, OJ 2003, 3.
In J 19/16 the Legal Board came to the conclusion that the loss of rights, i.e. the deemed withdrawal of the application, which occurred in the international phase could no longer be remedied in the national phase. Parallel competences of the receiving Office and the designated Office in respect of the same application were not excluded. The Legal Board held that the time limit, if any, for making a request to be excused under Art. 24(2) PCT was subject to national law only. The two-month time limit pursuant to Art. 25 PCT was therefore not applicable under Art. 24(2) PCT.