IP Docketing Automation & Compliance

EPO Further Processing vs Re-establishment of Rights

When an EPO time limit is missed, the European Patent Convention offers two very different escape hatches: further processing, a no-fault remedy available for most time limits on a simple request plus fee, and re-establishment of rights, a discretionary remedy reserved for the periods further processing cannot reach and granted only on a showing of all due care. This page contrasts the two — the standard each applies, the periods excluded from further processing, the deadline to request each, and the fees — so a docketing system routes a missed EPO deadline to the correct remedy instead of the more expensive or unavailable one.

The distinction is decisive in practice. Choosing further processing where it is excluded (most importantly for the priority year) wastes a filing; choosing re-establishment where further processing would have worked exposes the applicant to a due-care burden that was never necessary. This sits under the EPO Register Sync Architecture pipeline, which surfaces the missed-limit event that these remedies respond to.

The Default and the Exception

Further processing under Article 121 EPC and Rule 135 EPC is the default. Re-establishment under Article 122 EPC and Rule 136 EPC is the fallback for what further processing excludes. The table sets them side by side.

Dimension Further processing (Art. 121, Rule 135) Re-establishment (Art. 122, Rule 136)
Standard No fault; automatic on request + fee All due care required by the circumstances
Availability Most EPO time limits (the default remedy) Only periods excluded from further processing
Deadline to request 2 months from the Rule 112(1) noting of loss of rights 2 months from removal of the cause, and at most 1 year from the missed limit
How the request is made Complete the omitted act + pay the fee File a reasoned request + complete the act + pay the fee
Fee Further-processing fee (per omitted act) Re-establishment fee
Headline excluded period — Priority year (Art. 87(1)); further-processing and re-establishment periods

Operational Action: Route a missed EPO limit to further processing by default and reserve re-establishment for periods on the Rule 135(2) exclusion list — flipping that default turns a routine fee payment into a due-care petition.

Further Processing: the No-Fault Default

Further processing is deliberately low-friction. For the great majority of EPO procedural time limits, the applicant does not have to explain why the deadline was missed at all. The remedy is granted on two acts: completing the omitted act (for example, paying the outstanding fee or filing the missing response) and paying the further-processing fee. The request must be made within two months of the communication noting the loss of rights under Rule 112(1) EPC — that communication, not the original deadline, starts the clock.

Because it is no-fault, further processing is the remedy a docketing system should assume first whenever the register surfaces a missed procedural limit. The EPO Register Sync Architecture pipeline anchors the further-processing window to the Rule 112(1) noting date it ingests, then rolls it off EPO closure days under Rule 134(1) EPC like any other deadline.

Decision tree choosing between EPO further processing and re-establishment of rights A decision tree starts with a missed EPO time limit and a decision node asking whether the period is excluded from further processing under Rule 135(2). The left branch, no and covering most limits, leads to further processing under Article 121 EPC and Rule 135, a no-fault remedy on request plus fee, whose requirements are a request within two months of the Rule 112(1) noting of loss of rights plus the further-processing fee plus completion of the omitted act, ending in the outcome that proceedings continue with no fault shown. The right branch, yes and covering excluded periods such as the priority year, leads to re-establishment of rights under Article 122 EPC and Rule 136, requiring all due care, whose requirements are a reasoned request within two months of removal of the cause of non-compliance and at most one year from the missed limit plus the re-establishment fee plus completion of the act, ending in the outcome that the right is re-established once due care is accepted. MISSED TIME LIMIT EPO procedure DECISION Excluded from further processing? (Rule 135(2)) No · most limits Yes · priority year, etc. FURTHER PROCESSING Art. 121 EPC · Rule 135 no-fault · on request + fee the default remedy REQUIRED Request within 2 months of the Rule 112(1) noting of loss + FP fee + complete the act Proceedings continue no fault shown RE-ESTABLISHMENT Art. 122 EPC · Rule 136 all due care required by the circumstances REQUIRED Within 2 months of removal of the cause of non-compliance and max 1 year from the limit + RE fee + complete the act Right re-established due care accepted

Re-establishment: the All-Due-Care Remedy

Re-establishment of rights is the harder, discretionary remedy, reserved for time limits that further processing cannot reach. Its standard is exacting: the applicant must show that all due care required by the circumstances was taken to observe the missed time limit, a fact-specific test the EPO applies strictly, typically requiring a normally satisfactory monitoring system with an isolated, one-off error rather than a systemic failure.

The timing under Rule 136(1) EPC is a two-pronged cap: the request must be filed within two months of the removal of the cause of non-compliance and, in any event, within one year of expiry of the missed time limit. Both prongs must be satisfied, so the effective deadline is the earlier of the two, and the omitted act must be completed and the re-establishment fee paid within the same window. This is the European analogue to the US unintentional-delay revival covered in Recovering a Missed PCT National Phase Entry via USPTO Restoration Petition — but the EPO’s “all due care” bar is materially higher than the US “unintentional” standard.

Operational Action: For any re-establishment case, docket both prongs — two months from removal of cause and one year from the missed limit — and drive reminders off whichever is earlier, because the one-year outer limit is absolute and cannot be extended.

Which Periods Are Excluded from Further Processing

The exclusion list in Rule 135(2) EPC is what forces a case onto the re-establishment path. The most consequential excluded period is the 12-month priority period under Article 87(1) — a late priority claim can only be rescued by re-establishment, never further processing. Rule 135(2) also excludes the further-processing period itself and the re-establishment periods (you cannot use further processing to extend these remedies), along with a specific list of Rule-based limits. Encode the exclusions as version-pinned config cited to source, and fail closed on any limit not in the map:

# epo_remedies.yaml
# Source: Rule 135(2) EPC exclusions and Rule 136(1) time limits.
# https://www.epo.org/en/legal/epc/2020/r135.html  and  .../r136.html
rule_version: "2026.07.0"
# Periods excluded from further processing -> re-establishment only.
excluded_from_further_processing:
  - PRIORITY_PERIOD          # Art. 87(1) 12-month priority year
  - FURTHER_PROCESSING       # the further-processing period itself
  - REESTABLISHMENT          # the re-establishment periods (Rule 136)
further_processing:
  request_window_months: 2   # from the Rule 112(1) noting of loss of rights
reestablishment:
  from_removal_months: 2     # Rule 136(1) first prong
  outer_limit_months: 12     # Rule 136(1) absolute cap from the missed limit

The selector then routes a missed limit to the correct remedy and computes its deadline. The re-establishment deadline is the earlier of the two Rule 136(1) prongs:

from datetime import date
from dataclasses import dataclass
from dateutil.relativedelta import relativedelta

@dataclass(frozen=True)
class RemedyChoice:
    remedy: str
    request_deadline: date

def choose_epo_remedy(
    limit_code: str, missed_limit: date, removal_of_cause: date,
    rule112_noting: date, cfg: dict,
) -> RemedyChoice:
    """Route a missed EPO time limit to further processing or re-establishment."""
    excluded = set(cfg["excluded_from_further_processing"])
    if limit_code not in excluded:
        # No-fault default: 2 months from the Rule 112(1) noting of loss.
        window = cfg["further_processing"]["request_window_months"]
        return RemedyChoice("further_processing", rule112_noting + relativedelta(months=window))
    # Excluded period: re-establishment, earlier of the two Rule 136(1) prongs.
    from_removal = removal_of_cause + relativedelta(months=cfg["reestablishment"]["from_removal_months"])
    outer_limit = missed_limit + relativedelta(months=cfg["reestablishment"]["outer_limit_months"])
    return RemedyChoice("reestablishment", min(from_removal, outer_limit))

CFG = {
    "excluded_from_further_processing": ["PRIORITY_PERIOD", "FURTHER_PROCESSING", "REESTABLISHMENT"],
    "further_processing": {"request_window_months": 2},
    "reestablishment": {"from_removal_months": 2, "outer_limit_months": 12},
}

# A missed priority year is excluded -> re-establishment, capped at 1 year from the limit.
out = choose_epo_remedy("PRIORITY_PERIOD", date(2025, 3, 10), date(2025, 9, 1), date(2025, 5, 2), CFG)
assert out.remedy == "reestablishment"
assert out.request_deadline == date(2025, 11, 1)   # removal + 2 mo, earlier than 2026-03-10

Operational Action: Treat epo_remedies.yaml as code — gate the exclusion list through patent counsel, pin the rule version, and reconcile it against the current EPC Implementing Regulations before each release, since a mis-mapped limit routes a case to the wrong remedy.

Frequently Asked Questions

When should I use further processing instead of re-establishment at the EPO?
Use further processing whenever the missed limit is not on the Rule 135(2) exclusion list, which covers the great majority of EPO procedural time limits. It is the no-fault default: you complete the omitted act and pay the further-processing fee within two months of the Rule 112(1) noting of loss, with no need to explain why the deadline was missed. Reserve re-establishment for excluded periods like the priority year.
What is the deadline to request re-establishment of rights?
Under Rule 136(1) EPC the request must be filed within two months of the removal of the cause of non-compliance and, in any event, within one year of expiry of the missed time limit, with the omitted act completed and the fee paid in the same window. Both prongs must be met, so the effective deadline is the earlier of the two, and the one-year outer limit is absolute.
Can I use further processing to rescue a missed priority claim?
No. The 12-month priority period under Article 87(1) EPC is excluded from further processing by Rule 135(2), so a late priority claim can only be pursued through re-establishment of rights under Article 122 EPC, which requires a showing that all due care was taken. Routing a missed priority year to further processing simply fails.
How does the EPO due-care standard compare to the US unintentional standard?
The EPO re-establishment standard, all due care required by the circumstances, is materially stricter than the US unintentional-delay standard used for revival under 37 CFR 1.137. Due care generally requires a normally satisfactory monitoring system where an isolated error slipped through, whereas the US standard asks only that the entire delay was unintentional. A firm should not assume a case that qualifies in the US will qualify at the EPO.

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