Tuesday, 15 November 2011
Resist the Tempation BGH I ZB 21/11
I presume that every patent professional has already experienced the following tempting situation: your assistant prepares a letter to be signed on the last page and you find an error on page 1. In addition, you are - as always - in a hurry. Why not sign it and ask your assistant to replace sheet 1 with a corrected version?
In the decision I ZB 21/11, the attorney failed to resist this temptaion. He has allegedly remarked that the application was addressed to the wrong court and asked his assistant to correct this after signing - which she did not do as a consequence of the hectic pre-christmas season.
The request for restitutio in integrum failed because the attorney could have corrected the error immediately upon remarking it.
This is a deviation from the hitherto valid rule that the exercise of due diligence does not require controlling the correct execution of individual and specific directives given to assistants who had proven to be reliable before.