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Verdrag inzake de verlening van Europese octrooien (Europees Octrooiverdrag), München, 05-10-1973

Geldend van 01-10-2017 t/m heden

Verdrag inzake de verlening van Europese octrooien (Europees Octrooiverdrag)

Authentiek : EN

European Patent Convention

Preamble

The Contracting States,

Desiring to strengthen co-operation between the States of Europe in respect of the protection of inventions,

Desiring that such protection may be obtained in those States by a single procedure for the grant of patents, and by the establishment of certain standard rules governing patents so granted,

Desiring, for this purpose, to conclude a Convention which establishes a European Patent Organisation and which constitutes a special agreement within the meaning of Article 19 of the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883 and last revised on 14 July 1967, and a regional patent treaty within the meaning of Article 45, paragraph 1, of the Patent Cooperation Treaty of 19 June 1970,

Have agreed on the following provisions:

PART I. GENERAL AND INSTITUTIONAL PROVISIONS

CHAPTER I. GENERAL PROVISIONS

Article 1. European law for the grant of patents

A system of law, common to the Contracting States, for the grant of patents for invention is established by this Convention.

Article 2. European patent

  • 1 Patents granted under this Convention shall be called European patents.

  • 2 The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides otherwise.

Article 3. Territorial effect

The grant of a European patent may be requested for one or more of the Contracting States.

Article 4. European Patent Organisation

  • 1 A European Patent Organisation, hereinafter referred to as the Organisation, is established by this Convention. It shall have administrative and financial autonomy.

  • 2 The organs of the Organisation shall be:

    • a) the European Patent Office;

    • b) the Administrative Council.

  • 3 The task of the Organisation shall be to grant European patents. This shall be carried out by the European Patent Office supervised by the Administrative Council.

Article 4a. Conference of ministers of the Contracting States

A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system.

CHAPTER II. THE EUROPEAN PATENT ORGANISATION

Article 5. Legal status

  • 1 The Organisation shall have legal personality.

  • 2 In each of the Contracting States, the Organisation shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State; it may in particular acquire or dispose of movable and immovable property and may be a party to legal proceedings.

  • 3 The President of the European Patent Office shall represent the Organisation.

Article 6. Headquarters

  • 1 The Organisation shall have its headquarters in Munich.

  • 2 The European Patent Office shall be located in Munich. It shall have a branch at The Hague.

Article 7. Sub-offices of the European Patent Office

By decision of the Administrative Council, sub-offices of the European Patent Office may be created, if need be, for the purpose of information and liaison, in the Contracting States and with inter-governmental organisations in the field of industrial property, subject to the approval of the Contracting State or organisation concerned.

Article 8. Privileges and immunities

The Protocol on Privileges and Immunities annexed to this Convention shall define the conditions under which the Organisation, the members of the Administrative Council, the employees of the European Patent Office, and such other persons specified in that Protocol as take part in the work of the Organisation, shall enjoy, in each Contracting State, the privileges and immunities necessary for the performance of their duties.

Article 9. Liability

  • 1 The contractual liability of the Organisation shall be governed by the law applicable to the contract in question.

  • 2 The non-contractual liability of the Organisation in respect of any damage caused by it or by the employees of the European Patent Office in the performance of their duties shall be governed by the law of the Federal Republic of Germany. Where the damage is caused by the branch at The Hague or a sub-office or employees attached thereto, the law of the Contracting State in which such branch or sub-office is located shall apply.

  • 3 The personal liability of the employees of the European Patent Office towards the Organisation shall be governed by their Service Regulations or conditions of employment.

  • 4 The courts with jurisdiction to settle disputes under paragraphs 1 and 2 shall be:

    • a) for disputes under paragraph 1, the courts of the Federal Republic of Germany, unless the contract concluded between the parties designates a court of another State;

    • b) for disputes under paragraph 2, the courts of the Federal Republic of Germany, or of the State in which the branch or sub-office is located.

CHAPTER III. THE EUROPEAN PATENT OFFICE

Article 10. Management

  • 1 The European Patent Office shall be managed by the President, who shall be responsible for its activities to the Administrative Council.

  • 2 To this end, the President shall have in particular the following functions and powers:

    • a) he shall take all necessary steps to ensure the functioning of the European Patent Office, including the adoption of internal administrative instructions and information to the public;

    • b) unless this Convention provides otherwise, he shall prescribe which acts are to be performed at the European Patent Office in Munich and its branch at The Hague respectively;

    • c) he may submit to the Administrative Council any proposal for amending this Convention, for general regulations, or for decisions which come within the competence of the Administrative Council;

    • d) he shall prepare and implement the budget and any amending or supplementary budget;

    • e) he shall submit a management report to the Administrative Council each year;

    • f) he shall exercise supervisory authority over the staff;

    • g) subject to Article 11, he shall appoint the employees and decide on their promotion;

    • h) he shall exercise disciplinary authority over the employees other than those referred to in Article 11, and may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11, paragraphs 2 and 3;

    • i) he may delegate his functions and powers.

  • 3 The President shall be assisted by a number of Vice-Presidents. If the President is absent or indisposed, one of the Vice-Presidents shall take his place in accordance with the procedure laid down by the Administrative Council.

Article 11. Appointment of senior employees

  • 1 The President of the European Patent Office shall be appointed by the Administrative Council.

  • 2 The Vice-Presidents shall be appointed by the Administrative Council after the President of the European Patent Office has been consulted.

  • 3 The members, including the Chairmen, of the Boards of Appeal and of the Enlarged Board of Appeal shall be appointed by the Administrative Council on a proposal from the President of the European Patent Office. They may be re-appointed by the Administrative Council after the President of the European Patent Office has been consulted.

  • 4 The Administrative Council shall exercise disciplinary authority over the employees referred to in paragraphs 1 to 3.

  • 5 The Administrative Council, after consulting the President of the European Patent Office, may also appoint as members of the Enlarged Board of Appeal legally qualified members of the national courts or quasi-judicial authorities of the Contracting States, who may continue their judicial activities at the national level. They shall be appointed for a term of three years and may be re-appointed.

Article 12. Duties of office

Employees of the European Patent Office shall be bound, even after the termination of their employment, neither to disclose nor to make use of information which by its nature is a professional secret.

Article 13. Disputes between the Organisation and the employees of the European Patent Office

  • 1 Employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the International Labour Organization in the case of disputes with the European Patent Organisation, in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees.

  • 2 An appeal shall only be admissible if the person concerned has exhausted such other means of appeal as are available to him under the Service Regulations, the Pension Scheme Regulations or the conditions of employment.

Article 14. Languages of the European Patent Office, European patent applications and other documents

  • 1 The official languages of the European Patent Office shall be English, French and German.

  • 2 A European patent application shall be filed in one of the official languages or, if filed in any other language, translated into one of the official languages in accordance with the Implementing Regulations. Throughout the proceedings before the European Patent Office, such translation may be brought into conformity with the application as filed. If a required translation is not filed in due time, the application shall be deemed to be withdrawn.

  • 3 The official language of the European Patent Office in which the European patent application is filed or into which it is translated shall be used as the language of the proceedings in all proceedings before the European Patent Office, unless the Implementing Regulations provide otherwise.

  • 4 Natural or legal persons having their residence or principal place of business within a Contracting State having a language other than English, French or German as an official language, and nationals of that State who are resident abroad, may file documents which have to be filed within a time limit in an official language of that State. They shall, however, file a translation in an official language of the European Patent Office in accordance with the Implementing Regulations. If any document, other than those documents making up the European patent application, is not filed in the prescribed language, or if any required translation is not filed in due time, the document shall be deemed not to have been filed.

  • 5 European patent applications shall be published in the language of the proceedings.

  • 6 Specifications of European patents shall be published in the language of the proceedings and shall include a translation of the claims in the other two official languages of the European Patent Office.

  • 7 The following shall be published in the three official languages of the European Patent Office:

    • a) the European Patent Bulletin;

    • b) the Official Journal of the European Patent Office.

  • 8 Entries in the European Patent Register shall be made in the three official languages of the European Patent Office. In cases of doubt, the entry in the language of the proceedings shall be authentic.

Article 15. Departments entrusted with the procedure

To carry out the procedures laid down in this Convention, the following shall be set up within the European Patent Office:

  • a) a Receiving Section;

  • b) Search Divisions;

  • c) Examining Divisions;

  • d) Opposition Divisions;

  • e) a Legal Division;

  • f) Boards of Appeal;

  • g) an Enlarged Board of Appeal.

Article 16. Receiving Section

The Receiving Section shall be responsible for the examination on filing and the examination as to formal requirements of European patent applications.

Article 17. Search Divisions

The Search Divisions shall be responsible for drawing up European search reports.

Article 18. Examining Divisions

  • 1 The Examining Divisions shall be responsible for the examination of European patent applications.

  • 2 An Examining Division shall consist of three technically qualified examiners. However, before a decision is taken on a European patent application, its examination shall, as a general rule, be entrusted to one member of the Examining Division. Oral proceedings shall be before the Examining Division itself. If the Examining Division considers that the nature of the decision so requires, it shall be enlarged by the addition of a legally qualified examiner. In the event of parity of votes, the vote of the Chairman of the Examining Division shall be decisive.

Article 19. Opposition Divisions

  • 1 The Opposition Divisions shall be responsible for the examination of oppositions against any European patent.

  • 2 An Opposition Division shall consist of three technically qualified examiners, at least two of whom shall not have taken part in the proceedings for grant of the patent to which the opposition relates. An examiner who has taken part in the proceedings for the grant of the European patent may not be the Chairman. Before a decision is taken on the opposition, the Opposition Division may entrust the examination of the opposition to one of its members. Oral proceedings shall be before the Opposition Division itself. If the Opposition Division considers that the nature of the decision so requires, it shall be enlarged by the addition of a legally qualified examiner who shall not have taken part in the proceedings for grant of the patent. In the event of parity of votes, the vote of the Chairman of the Opposition Division shall be decisive.

Article 20. Legal Division

  • 1 The Legal Division shall be responsible for decisions in respect of entries in the Register of European Patents and in respect of registration on, and deletion from, the list of professional representatives.

  • 2 Decisions of the Legal Division shall be taken by one legally qualified member.

Article 21. Boards of Appeal

  • 1 The Boards of Appeal shall be responsible for the examination of appeals from decisions of the Receiving Section, the Examining Divisions and Opposition Divisions, and the Legal Division.

  • 2 For appeals from decisions of the Receiving Section or the Legal Division, a Board of Appeal shall consist of three legally qualified members.

  • 3 For appeals from a decision of an Examining Division, a Board of Appeal shall consist of:

    • a) two technically qualified members and one legally qualified member, when the decision concerns the refusal of a European patent application or the grant, limitation or revocation of a European patent, and was taken by an Examining Division consisting of less than four members;

    • b) three technically and two legally qualified members, when the decision was taken by an Examining Division consisting of four members, or when the Board of Appeal considers that the nature of the appeal so requires;

    • c) three legally qualified members in all other cases.

  • 4 For appeals from a decision of an Opposition Division, a Board of Appeal shall consist of:

    • a) two technically qualified members and one legally qualified member, when the decision was taken by an Opposition Division consisting of three members;

    • b) three technically and two legally qualified members, when the decision was taken by an Opposition Division consisting of four members, or when the Board of Appeal considers that the nature of the appeal so requires.

Article 22. Enlarged Board of Appeal

  • 1 The Enlarged Board of Appeal shall be responsible for:

    • a) deciding on points of law referred to it by Boards of Appeal under Article 112;

    • b) giving opinions on points of law referred to it by the President of the European Patent Office under Article 112;

    • c) deciding on petitions for review of decisions of the Boards of Appeal under Article 112a.

  • 2 In proceedings under paragraph 1(a) and (b), the Enlarged Board of Appeal shall consist of five legally and two technically qualified members. In proceedings under paragraph 1(c), the Enlarged Board of Appeal shall consist of three or five members as laid down in the Implementing Regulations. In all proceedings, a legally qualified member shall be the Chairman.

Article 23. Independence of the members of the Boards

  • 1 The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. Notwithstanding sentence 1, the term of office of members of the Boards shall end if they resign or are retired in accordance with the Service Regulations for permanent employees of the European Patent Office.

  • 2 The members of the Boards may not be members of the Receiving Section, Examining Divisions, Opposition Divisions or Legal Division.

  • 3 In their decisions the members of the Boards shall not be bound by any instructions and shall comply only with the provisions of this Convention.

  • 4 The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be adopted in accordance with the Implementing Regulations. They shall be subject to the approval of the Administrative Council.

Article 24. Exclusion and objection

  • 1 Members of the Boards of Appeal or of the Enlarged Board of Appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal.

  • 2 If, for one of the reasons mentioned in paragraph 1, or for any other reason, a member of a Board of Appeal or of the Enlarged Board of Appeal considers that he should not take part in any appeal, he shall inform the Board accordingly.

  • 3 Members of a Board of Appeal or of the Enlarged Board of Appeal may be objected to by any party for one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. An objection may not be based upon the nationality of members.

  • 4 The Boards of Appeal and the Enlarged Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3, without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate.

Article 25. Technical opinion

At the request of the competent national court hearing an infringement or revocation action, the European Patent Office shall be obliged, on payment of an appropriate fee, to give a technical opinion concerning the European patent which is the subject of the action. The Examining Division shall be responsible for issuing such opinions.

CHAPTER IV. THE ADMINISTRATIVE COUNCIL

Article 26. Membership

  • 1 The Administrative Council shall be composed of the Representatives and the alternate Representatives of the Contracting States. Each Contracting State shall be entitled to appoint one Representative and one alternate Representative to the Administrative Council.

  • 2 The members of the Administrative Council may, in accordance with the Rules of Procedure of the Administrative Council, be assisted by advisers or experts.

Article 27. Chairmanship

  • 1 The Administrative Council shall elect a Chairman and a Deputy Chairman from among the Representatives and alternate Representatives of the Contracting States. The Deputy Chairman shall ex officio replace the Chairman if he is prevented from carrying out his duties.

  • 2 The terms of office of the Chairman and the Deputy Chairman shall be three years. They may be re-elected.

Article 28. Board

  • 1 When there are at least eight Contracting States, the Administrative Council may set up a Board composed of five of its members.

  • 2 The Chairman and the Deputy Chairman of the Administrative Council shall be members of the Board ex officio; the other three members shall be elected by the Administrative Council.

  • 3 The term of office of the members elected by the Administrative Council shall be three years. They may not be re-elected.

  • 4 The Board shall perform the duties assigned to it by the Administrative Council in accordance with the Rules of Procedure.

Article 29. Meetings

  • 1 Meetings of the Administrative Council shall be convened by its Chairman.

  • 2 The President of the European Patent Office shall take part in the deliberations of the Administrative Council.

  • 3 The Administrative Council shall hold an ordinary meeting once each year. In addition, it shall meet on the initiative of its Chairman or at the request of one-third of the Contracting States.

  • 4 The deliberations of the Administrative Council shall be based on an agenda, and shall be held in accordance with its Rules of Procedure.

  • 5 The provisional agenda shall contain any question whose inclusion is requested by any Contracting State in accordance with the Rules of Procedure.

Article 30. Attendance of observers

  • 1 The World Intellectual Property Organization shall be represented at the meetings of the Administrative Council, in accordance with an agreement between the Organisation and the World Intellectual Property Organization.

  • 2 Other intergovernmental organisations entrusted with carrying out international procedures in the field of patents, with which the Organisation has concluded an agreement, shall be represented at the meetings of the Administrative Council, in accordance with such agreement.

  • 3 Any other intergovernmental and international non-governmental organisations carrying out an activity of interest to the Organisation may be invited by the Administrative Council to be represented at its meetings during any discussion of matters of mutual interest.

Article 31. Languages of the Administrative Council

  • 1 The languages used in the deliberations of the Administrative Council shall be English, French and German.

  • 2 Documents submitted to the Administrative Council, and the minutes of its deliberations, shall be drawn up in the three languages specified in paragraph 1.

Article 32. Staff, premises and equipment

The European Patent Office shall place at the disposal of the Administrative Council, and of any committee established by it, such staff, premises and equipment as may be necessary for the performance of their duties.

Article 33. Competence of the Administrative Council in certain cases

  • 1 The Administrative Council shall be competent to amend:

    • a) the time limits laid down in this Convention;

    • b) Parts II to VIII and Part X of this Convention, to bring them into line with an international treaty relating to patents or European Community legislation relating to patents;

    • c) the Implementing Regulations.

  • 2 The Administrative Council shall be competent, in conformity with this Convention, to adopt or amend:

    • a) the Financial Regulations;

    • b) the Service Regulations for permanent employees and the conditions of employment of other employees of the European Patent Office, the salary scales of the said permanent and other employees, and also the nature of any supplementary benefits and the rules for granting them;

    • c) the Pension Scheme Regulations and any appropriate increases in existing pensions to correspond to increases in salaries;

    • d) the Rules relating to Fees;

    • e) its Rules of Procedure.

  • 3 Notwithstanding Article 18, paragraph 2, the Administrative Council shall be competent to decide, in the light of experience, that in certain categories of cases Examining Divisions shall consist of one technically qualified examiner only. Such decision may be rescinded.

  • 4 The Administrative Council shall be competent to authorise the President of the European Patent Office to negotiate and, subject to its approval, to conclude agreements on behalf of the European Patent Organisation with States, with intergovernmental organisations and with documentation centres set up on the basis of agreements with such organisations.

  • 5 The Administrative Council may not take a decision under paragraph 1(b):

    • concerning an international treaty, before its entry into force;

    • concerning European Community legislation, before its entry into force or, where that legislation lays down a period for its implementation, before the expiry of that period.

Article 34. Voting rights

  • 1 The right to vote in the Administrative Council shall be restricted to the Contracting States.

  • 2 Each Contracting State shall have one vote, except where Article 36 applies.

Article 35. Voting rules

  • 1 The Administrative Council shall take its decisions, other than those referred to in paragraphs 2 and 3, by a simple majority of the Contracting States represented and voting.

  • 3 Unanimity of the Contracting States voting shall be required for the decisions which the Administrative Council is empowered to take under Article 33, paragraph 1(b). The Administrative Council shall take such decisions only if all the Contracting States are represented. A decision taken on the basis of Article 33, paragraph 1(b), shall not take effect if a Contracting State declares, within twelve months of the date of the decision, that it does not wish to be bound by that decision.

  • 4 Abstentions shall not be considered as votes.

Article 36. Weighting of votes

  • 1 In respect of the adoption or amendment of the Rules relating to Fees and, if the financial contribution to be made by the Contracting States would thereby be increased, the adoption of the budget of the Organisation and of any amending or supplementary budget, any Contracting State may require, following a first ballot in which each Contracting State shall have one vote, and whatever the result of this ballot, that a second ballot be taken immediately, in which votes shall be given to the States in accordance with paragraph 2. The decision shall be determined by the result of this second ballot.

  • 2 The number of votes that each Contracting State shall have in the second ballot shall be calculated as follows:

    • a) the percentage obtained for each Contracting State in respect of the scale for the special financial contributions, pursuant to Article 40, paragraphs 3 and 4, shall be multiplied by the number of Contracting States and divided by five;

    • b) the number of votes thus given shall be rounded upwards to the next whole number;

    • c) five additional votes shall be added to this number;

    • d) nevertheless, no Contracting State shall have more than 30 votes.

CHAPTER V. FINANCIAL PROVISIONS

Article 37. Budgetary funding

The budget of the Organisation shall be financed:

  • a) by the Organisation’s own resources;

  • b) by payments made by the Contracting States in respect of renewal fees for European patents levied in these States;

  • c) where necessary, by special financial contributions made by the Contracting States;

  • d) where appropriate, by the revenue provided for in Article 146;

  • e) where appropriate, and for tangible assets only, by third-party borrowings secured on land or buildings;

  • f) where appropriate, by third-party funding for specific projects.

Article 38. The Organisation’s own resources

The Organisation’s own resources shall comprise:

  • a) all income from fees and other sources and also the reserves of the Organisation;

  • b) the resources of the Pension Reserve Fund, which shall be treated as a special class of asset of the Organisation, designed to support the Organisation’s pension scheme by providing the appropriate reserves.

Article 39. Payments by the Contracting States in respect of renewal fees for European patents

  • 1 Each Contracting State shall pay to the Organisation in respect of each renewal fee received for a European patent in that State an amount equal to a proportion of that fee, to be fixed by the Administrative Council; the proportion shall not exceed 75% and shall be the same for all Contracting States. However, if the said proportion corresponds to an amount which is less than a uniform minimum amount fixed by the Administrative Council, the Contracting State shall pay that minimum to the Organisation.

  • 2 Each Contracting State shall communicate to the Organisation such information as the Administrative Council considers to be necessary to determine the amount of these payments.

  • 3 The due dates for these payments shall be determined by the Administrative Council.

  • 4 If a payment is not remitted fully by the due date, the Contracting State shall pay interest from the due date on the amount remaining unpaid.

Article 40. Level of fees and payments – Special financial contributions

  • 1 The amounts of the fees referred to in Article 38 and the proportion referred to in Article 39 shall be fixed at such a level as to ensure that the revenue in respect thereof is sufficient for the budget of the Organisation to be balanced.

  • 2 However, if the Organisation is unable to balance its budget under the conditions laid down in paragraph 1, the Contracting States shall remit to the Organisation special financial contributions, the amount of which shall be determined by the Administrative Council for the accounting period in question.

  • 3 These special financial contributions shall be determined in respect of any Contracting State on the basis of the number of patent applications filed in the last year but one prior to that of entry into force of this Convention, and calculated in the following manner:

    • a) one half in proportion to the number of patent applications filed in that Contracting State;

    • b) one half in proportion to the second highest number of patent applications filed in the other Contracting States by natural or legal persons having their residence or principal place of business in that Contracting State.

    However, the amounts to be contributed by States in which the number of patent applications filed exceeds 25 000 shall then be taken as a whole and a new scale drawn up in proportion to the total number of patent applications filed in these States.

  • 4 Where the scale position of any Contracting State cannot be established in accordance with paragraph 3, the Administrative Council shall, with the consent of that State, decide its scale position.

  • 6 The special financial contributions shall be repaid with interest at a rate which shall be the same for all Contracting States. Repayments shall be made in so far as it is possible to provide for this purpose in the budget; the amount thus provided shall be distributed among the Contracting States in accordance with the scale referred to in paragraphs 3 and 4.

  • 7 The special financial contributions remitted in any accounting period shall be repaid in full before any such contributions or parts thereof remitted in any subsequent accounting period are repaid.

Article 41. Advances

  • 1 At the request of the President of the European Patent Office, the Contracting States shall grant advances to the Organisation, on account of their payments and contributions, within the limit of the amount fixed by the Administrative Council. The amount of such advances shall be determined in proportion to the amounts due from the Contracting States for the accounting period in question.

Article 42. Budget

  • 1 The budget of the Organisation shall be balanced. It shall be drawn up in accordance with the generally accepted accounting principles laid down in the Financial Regulations. If necessary, there may be amending or supplementary budgets.

  • 2 The budget shall be drawn up in the unit of account fixed in the Financial Regulations.

Article 43. Authorisation for expenditure

  • 1 The expenditure entered in the budget shall be authorised for the duration of one accounting period, unless the Financial Regulations provide otherwise.

  • 2 In accordance with the Financial Regulations, any appropriations, other than those relating to staff costs, which are unexpended at the end of the accounting period may be carried forward, but not beyond the end of the following accounting period.

  • 3 Appropriations shall be set out under different headings according to type and purpose of the expenditure and subdivided, as far as necessary, in accordance with the Financial Regulations.

Article 44. Appropriations for unforeseeable expenditure

  • 1 The budget of the Organisation may contain appropriations for unforeseeable expenditure.

  • 2 The employment of these appropriations by the Organisation shall be subject to the prior approval of the Administrative Council.

Article 45. Accounting period

The accounting period shall commence on 1 January and end on 31 December.

Article 46. Preparation and adoption of the budget

  • 1 The President of the European Patent Office shall submit the draft budget to the Administrative Council no later than the date prescribed in the Financial Regulations.

  • 2 The budget and any amending or supplementary budget shall be adopted by the Administrative Council.

Article 47. Provisional budget

  • 1 If, at the beginning of the accounting period, the budget has not been adopted by the Administrative Council, expenditures may be effected on a monthly basis per heading or other division of the budget, in accordance with the Financial Regulations, up to one-twelfth of the budget appropriations for the preceding accounting period, provided that the appropriations thus made available to the President of the European Patent Office shall not exceed one-twelfth of those provided for in the draft budget.

  • 2 The Administrative Council may, subject to the observance of the other provisions laid down in paragraph 1, authorise expenditure in excess of one-twelfth of the appropriations.

  • 3 The payments referred to in Article 37(b), shall continue to be made, on a provisional basis, under the conditions determined under Article 39 for the year preceding that to which the draft budget relates.

  • 4 The Contracting States shall pay each month, on a provisional basis and in accordance with the scale referred to in Article 40, paragraphs 3 and 4, any special financial contributions necessary to ensure implementation of paragraphs 1 and 2. Article 39, paragraph 4, shall apply mutatis mutandis to these contributions.

Article 48. Budget implementation

  • 1 The President of the European Patent Office shall implement the budget and any amending or supplementary budget on his own responsibility and within the limits of the allocated appropriations.

  • 2 Within the budget, the President of the European Patent Office may, in accordance with the Financial Regulations, transfer funds between the various headings or sub-headings.

Article 49. Auditing of accounts

  • 1 The income and expenditure account and a balance sheet of the Organisation shall be examined by auditors whose independence is beyond doubt, appointed by the Administrative Council for a period of five years, which shall be renewable or extensible.

  • 2 The audit shall be based on vouchers and shall take place, if necessary, in situ. The audit shall ascertain whether all income has been received and all expenditure effected in a lawful and proper manner and whether the financial management is sound. The auditors shall draw up a report containing a signed audit opinion after the end of each accounting period.

  • 3 The President of the European Patent Office shall annually submit to the Administrative Council the accounts of the preceding accounting period in respect of the budget and the balance sheet showing the assets and liabilities of the Organisation together with the report of the auditors.

  • 4 The Administrative Council shall approve the annual accounts together with the report of the auditors and shall discharge the President of the European Patent Office in respect of the implementation of the budget.

Article 50. Financial Regulations

The Financial Regulations shall lay down in particular:

  • a) the arrangements relating to the establishment and implementation of the budget and for the rendering and auditing of accounts;

  • b) the method and procedure whereby the payments and contributions provided for in Article 37 and the advances provided for in Article 41 are to be made available to the Organisation by the Contracting States;

  • c) the rules concerning the responsibilities of authorising and accounting officers and the arrangements for their supervision;

  • d) the rates of interest provided for in Articles 39, 40 and 47;

  • e) the method of calculating the contributions payable by virtue of Article 146;

  • f) the composition of and duties to be assigned to a Budget and Finance Committee which should be set up by the Administrative Council;

  • g) the generally accepted accounting principles on which the budget and the annual financial statements shall be based.

Article 51. Fees

  • 1 The European Patent Office may levy fees for any official task or procedure carried out under this Convention.

  • 2 Time limits for the payment of fees other than those fixed by this Convention shall be laid down in the Implementing Regulations.

  • 3 Where the Implementing Regulations provide that a fee shall be paid, they shall also lay down the legal consequences of failure to pay such fee in due time.

  • 4 The Rules relating to Fees shall determine in particular the amounts of the fees and the ways in which they are to be paid.

PART II. SUBSTANTIVE PATENT LAW

CHAPTER I. PATENTABILITY

Article 52. Patentable inventions

  • 1 European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

  • 2 The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

    • a) discoveries, scientific theories and mathematical methods;

    • b) aesthetic creations;

    • c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

    • d) presentations of information.

  • 3 Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

Article 53. Exceptions to patentability

European patents shall not be granted in respect of:

  • a) inventions the commercial exploitation of which would be contrary to ordre public or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;

  • b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof;

  • c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods.

Article 54. Novelty

  • 1 An invention shall be considered to be new if it does not form part of the state of the art.

  • 2 The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.

  • 3 Additionally, the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date, shall be considered as comprised in the state of the art.

  • 4 Paragraphs 2 and 3 shall not exclude the patentability of any substance or composition, comprised in the state of the art, for use in a method referred to in Article 53(c), provided that its use for any such method is not comprised in the state of the art.

  • 5 Paragraphs 2 and 3 shall also not exclude the patentability of any substance or composition referred to in paragraph 4 for any specific use in a method referred to in Article 53(c), provided that such use is not comprised in the state of the art.

Article 55. Non-prejudicial disclosures

  • 1 For the application of Article 54, a disclosure of the invention shall not be taken into consideration if it occurred no earlier than six months preceding the filing of the European patent application and if it was due to, or in consequence of:

    • a) an evident abuse in relation to the applicant or his legal predecessor, or

    • b) the fact that the applicant or his legal predecessor has displayed the invention at an official, or officially recognised, international exhibition falling within the terms of the Convention on international exhibitions signed at Paris on 22 November 1928 and last revised on 30 November 1972.

  • 2 In the case of paragraph 1(b), paragraph 1 shall apply only if the applicant states, when filing the European patent application, that the invention has been so displayed and files a supporting certificate within the time limit and under the conditions laid down in the Implementing Regulations.

Article 56. Inventive step

An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. If the state of the art also includes documents within the meaning of Article 54, paragraph 3, these documents shall not be considered in deciding whether there has been an inventive step.

Article 57. Industrial application

An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

CHAPTER II. PERSONS ENTITLED TO APPLY FOR AND OBTAIN A EUROPEAN PATENT – MENTION OF THE INVENTOR

Article 58. Entitlement to file a European patent application

A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it.

Article 59. Multiple applicants

A European patent application may also be filed either by joint applicants or by two or more applicants designating different Contracting States.

Article 60. Right to a European patent

  • 1 The right to a European patent shall belong to the inventor or his successor in title. If the inventor is an employee the right to a European patent shall be determined in accordance with the law of the State in which the employee is mainly employed; if the State in which the employee is mainly employed cannot be determined, the law to be applied shall be that of the State in which the employer has the place of business to which the employee is attached.

  • 2 If two or more persons have made an invention independently of each other, the right to a European patent therefor shall belong to the person whose European patent application has the earliest date of filing, provided that this first application has been published.

  • 3 In proceedings before the European Patent Office, the applicant shall be deemed to be entitled to exercise the right to a European patent.

Article 61. European patent applications filed by non-entitled persons

  • 1 If by a final decision it is adjudged that a person other than the applicant is entitled to the grant of the European patent, that person may, in accordance with the Implementing Regulations:

    • a) prosecute the European patent application as his own application in place of the applicant;

    • b) file a new European patent application in respect of the same invention; or

    • c) request that the European patent application be refused.

  • 2 Article 76, paragraph 1, shall apply mutatis mutandis to a new European patent application filed under paragraph 1(b).

Article 62. Right of the inventor to be mentioned

The inventor shall have the right, vis-à-vis the applicant for or proprietor of a European patent, to be mentioned as such before the European Patent Office.

CHAPTER III. EFFECTS OF THE EUROPEAN PATENT AND THE EUROPEAN PATENT APPLICATION

Article 63. Term of the European patent

  • 1 The term of the European patent shall be 20 years from the date of filing of the application.

  • 2 Nothing in the preceding paragraph shall limit the right of a Contracting State to extend the term of a European patent, or to grant corresponding protection which follows immediately on expiry of the term of the patent, under the same conditions as those applying to national patents:

    • a) in order to take account of a state of war or similar emergency conditions affecting that State;

    • b) if the subject-matter of the European patent is a product or a process for manufacturing a product or a use of a product which has to undergo an administrative authorisation procedure required by law before it can be put on the market in that State.

  • 3 Paragraph 2 shall apply mutatis mutandis to European patents granted jointly for a group of Contracting States in accordance with Article 142.

  • 4 A Contracting State which makes provision for extension of the term or corresponding protection under paragraph 2(b) may, in accordance with an agreement concluded with the Organisation, entrust to the European Patent Office tasks associated with implementation of the relevant provisions.

Article 64. Rights conferred by a European patent

  • 1 A European patent shall, subject to the provisions of paragraph 2, confer on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.

  • 2 If the subject-matter of the European patent is a process, the protection conferred by the patent shall extend to the products directly obtained by such process.

  • 3 Any infringement of a European patent shall be dealt with by national law.

Article 65. Translation of the European patent

  • 1 Any Contracting State may, if the European patent as granted, amended or limited by the European Patent Office is not drawn up in one of its official languages, prescribe that the proprietor of the patent shall supply to its central industrial property office a translation of the patent as granted, amended or limited in one of its official languages at his option or, where that State has prescribed the use of one specific official language, in that language. The period for supplying the translation shall end three months after the date on which the mention of the grant, maintenance in amended form or limitation of the European patent is published in the European Patent Bulletin, unless the State concerned prescribes a longer period.

  • 2 Any Contracting State which has adopted provisions pursuant to paragraph 1 may prescribe that the proprietor of the patent must pay all or part of the costs of publication of such translation within a period laid down by that State.

  • 3 Any Contracting State may prescribe that in the event of failure to observe the provisions adopted in accordance with paragraphs 1 and 2, the European patent shall be deemed to be void ab initio in that State.

Article 66. Equivalence of European filing with national filing

A European patent application which has been accorded a date of filing shall, in the designated Contracting States, be equivalent to a regular national filing, where appropriate with the priority claimed for the European patent application.

Article 67. Rights conferred by a European patent application after publication

  • 1 A European patent application shall, from the date of its publication, provisionally confer upon the applicant the protection provided for by Article 64, in the Contracting States designated in the application.

  • 2 Any Contracting State may prescribe that a European patent application shall not confer such protection as is conferred by Article 64. However, the protection attached to the publication of the European patent application may not be less than that which the laws of the State concerned attach to the compulsory publication of unexamined national patent applications. In any event, each State shall ensure at least that, from the date of publication of a European patent application, the applicant can claim compensation reasonable in the circumstances from any person who has used the invention in that State in circumstances where that person would be liable under national law for infringement of a national patent.

  • 3 Any Contracting State which does not have as an official language the language of the proceedings may prescribe that provisional protection in accordance with paragraphs 1 and 2 above shall not be effective until such time as a translation of the claims in one of its official languages at the option of the applicant or, where that State has prescribed the use of one specific official language, in that language:

    • a) has been made available to the public in the manner prescribed by national law, or

    • b) has been communicated to the person using the invention in the said State.

  • 4 The European patent application shall be deemed never to have had the effects set out in paragraphs 1 and 2 when it has been withdrawn, deemed to be withdrawn or finally refused. The same shall apply in respect of the effects of the European patent application in a Contracting State the designation of which is withdrawn or deemed to be withdrawn.

Article 68. Effect of revocation or limitation of the European patent

The European patent application and the resulting European patent shall be deemed not to have had, from the outset, the effects specified in Articles 64 and 67, to the extent that the patent has been revoked or limited in opposition, limitation or revocation proceedings.

Article 69. Extent of protection

  • 1 The extent of the protection conferred by a European patent or a European patent application shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims.

  • 2 For the period up to grant of the European patent, the extent of the protection conferred by the European patent application shall be determined by the claims contained in the application as published. However, the European patent as granted or as amended in opposition, limitation or revocation proceedings shall determine retroactively the protection conferred by the application, in so far as such protection is not thereby extended.

Article 70. Authentic text of a European patent application or European patent

  • 1 The text of a European patent application or a European patent in the language of the proceedings shall be the authentic text in any proceedings before the European Patent Office and in any Contracting State.

  • 2 If, however, the European patent application has been filed in a language which is not an official language of the European Patent Office, that text shall be the application as filed within the meaning of this Convention.

  • 3 Any Contracting State may provide that a translation into one of its official languages, as prescribed by it according to this Convention, shall in that State be regarded as authentic, except for revocation proceedings, in the event of the European patent application or European patent in the language of the translation conferring protection which is narrower than that conferred by it in the language of the proceedings.

  • 4 Any Contracting State which adopts a provision under paragraph 3:

    • a) shall allow the applicant for or proprietor of the patent to file a corrected translation of the European patent application or European patent. Such corrected translation shall not have any legal effect until any conditions established by the Contracting State under Article 65, paragraph 2, or Article 67, paragraph 3, have been complied with;

    • b) may prescribe that any person who, in that State, in good faith has used or has made effective and serious preparations for using an invention the use of which would not constitute infringement of the application or patent in the original translation, may, after the corrected translation takes effect, continue such use in the course of his business or for the needs thereof without payment.

CHAPTER IV. THE EUROPEAN PATENT APPLICATION AS AN OBJECT OF PROPERTY

Article 71. Transfer and constitution of rights

A European patent application may be transferred or give rise to rights for one or more of the designated Contracting States.

Article 72. Assignment

An assignment of a European patent application shall be made in writing and shall require the signature of the parties to the contract.

Article 73. Contractual licensing

A European patent application may be licensed in whole or in part for the whole or part of the territories of the designated Contracting States.

Article 74. Law applicable

Unless this Convention provides otherwise, the European patent application as an object of property shall, in each designated Contracting State and with effect for such State, be subject to the law applicable in that State to national patent applications.

PART III. THE EUROPEAN PATENT APPLICATION

CHAPTER I. FILING AND REQUIREMENTS OF THE EUROPEAN PATENT APPLICATION

Article 75. Filing of a European patent application

  • 1 A European patent application may be filed:

    • a) with the European Patent Office, or

    • b) if the law of a Contracting State so permits, and subject to Article 76, paragraph 1, with the central industrial property office or other competent authority of that State. Any application filed in this way shall have the same effect as if it had been filed on the same date with the European Patent Office.

  • 2 Paragraph 1 shall not preclude the application of legislative or regulatory provisions which, in any Contracting State:

    • a) govern inventions which, owing to the nature of their subject-matter, may not be communicated abroad without the prior authorisation of the competent authorities of that State, or

    • b) prescribe that any application is to be filed initially with a national authority, or make direct filing with another authority subject to prior authorisation.

Article 76. European divisional applications

  • 1 A European divisional application shall be filed directly with the European Patent Office in accordance with the Implementing Regulations. It may be filed only in respect of subject-matter which does not extend beyond the content of the earlier application as filed; in so far as this requirement is complied with, the divisional application shall be deemed to have been filed on the date of filing of the earlier application and shall enjoy any right of priority.

  • 2 All the Contracting States designated in the earlier application at the time of filing of a European divisional application shall be deemed to be designated in the divisional application.

Article 77. Forwarding of European patent applications

  • 1 The central industrial property office of a Contracting State shall forward to the European Patent Office any European patent application filed with it or any other competent authority in that State, in accordance with the Implementing Regulations.

  • 2 A European patent application the subject of which has been made secret shall not be forwarded to the European Patent Office.

  • 3 A European patent application not forwarded to the European Patent Office in due time shall be deemed to be withdrawn.

Article 78. Requirements of a European patent application

  • 1 A European patent application shall contain:

    • a) a request for the grant of a European patent;

    • b) a description of the invention;

    • c) one or more claims;

    • d) any drawings referred to in the description or the claims;

    • e) an abstract,

    and satisfy the requirements laid down in the Implementing Regulations.

  • 2 A European patent application shall be subject to the payment of the filing fee and the search fee. If the filing fee or the search fee is not paid in due time, the application shall be deemed to be withdrawn.

Article 79. Designation of Contracting States

  • 1 All the Contracting States party to this Convention at the time of filing of the European patent application shall be deemed to be designated in the request for grant of a European patent.

  • 2 The designation of a Contracting State may be subject to the payment of a designation fee.

  • 3 The designation of a Contracting State may be withdrawn at any time up to the grant of the European patent.

Article 80. Date of filing

The date of filing of a European patent application shall be the date on which the requirements laid down in the Implementing Regulations are fulfilled.

Article 81. Designation of the inventor

The European patent application shall designate the inventor. If the applicant is not the inventor or is not the sole inventor, the designation shall contain a statement indicating the origin of the right to the European patent.

Article 82. Unity of invention

The European patent application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept.

Article 83. Disclosure of the invention

The European patent application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.

Article 84. Claims

The claims shall define the matter for which protection is sought. They shall be clear and concise and be supported by the description.

Article 85. Abstract

The abstract shall serve the purpose of technical information only; it may not be taken into account for any other purpose, in particular for interpreting the scope of the protection sought or applying Article 54, paragraph 3.

Article 86. Renewal fees for the European patent application

  • 1 Renewal fees for the European patent application shall be paid to the European Patent Office in accordance with the Implementing Regulations. These fees shall be due in respect of the third year and each subsequent year, calculated from the date of filing of the application. If a renewal fee is not paid in due time, the application shall be deemed to be withdrawn.

  • 2 The obligation to pay renewal fees shall terminate with the payment of the renewal fee due in respect of the year in which the mention of the grant of the European patent is published in the European Patent Bulletin.

CHAPTER II. PRIORITY

Article 87. Priority right

  • 1 Any person who has duly filed, in or for

    an application for a patent, a utility model or a utility certificate, or his successor in title, shall enjoy, for the purpose of filing a European patent application in respect of the same invention, a right of priority during a period of twelve months from the date of filing of the first application.

  • 2 Every filing that is equivalent to a regular national filing under the national law of the State where it was made or under bilateral or multilateral agreements, including this Convention, shall be recognised as giving rise to a right of priority.

  • 3 A regular national filing shall mean any filing that is sufficient to establish the date on which the application was filed, whatever the outcome of the application may be.

  • 4 A subsequent application in respect of the same subject-matter as a previous first application and filed in or for the same State shall be considered as the first application for the purposes of determining priority, provided that, at the date of filing the subsequent application, the previous application has been withdrawn, abandoned or refused, without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right of priority. The previous application may not thereafter serve as a basis for claiming a right of priority.

Article 88. Claiming priority

  • 1 An applicant desiring to take advantage of the priority of a previous application shall file a declaration of priority and any other document required, in accordance with the Implementing Regulations.

  • 2 Multiple priorities may be claimed in respect of a European patent application, notwithstanding the fact that they originated in different countries. Where appropriate, multiple priorities may be claimed for any one claim. Where multiple priorities are claimed, time limits which run from the date of priority shall run from the earliest date of priority.

  • 3 If one or more priorities are claimed in respect of a European patent application, the right of priority shall cover only those elements of the European patent application which are included in the application or applications whose priority is claimed.

  • 4 If certain elements of the invention for which priority is claimed do not appear among the claims formulated in the previous application, priority may nonetheless be granted, provided that the documents of the previous application as a whole specifically disclose such elements.

Article 89. Effect of priority right

The right of priority shall have the effect that the date of priority shall count as the date of filing of the European patent application for the purposes of Article 54, paragraphs 2 and 3, and Article 60, paragraph 2.

PART IV. PROCEDURE UP TO GRANT

Article 90. Examination on filing and examination as to formal requirements

  • 1 The European Patent Office shall examine, in accordance with the Implementing Regulations, whether the application satisfies the requirements for the accordance of a date of filing.

  • 2 If a date of filing cannot be accorded following the examination under paragraph 1, the application shall not be dealt with as a European patent application.

  • 4 Where the European Patent Office in carrying out the examination under paragraphs 1 or 3 notes that there are deficiencies which may be corrected, it shall give the applicant an opportunity to correct them.

  • 5 If any deficiency noted in the examination under paragraph 3 is not corrected, the European patent application shall be refused unless a different legal consequence is provided for by this Convention. Where the deficiency concerns the right of priority, this right shall be lost for the application.

Article 91. Examination as to formal requirements [Vervallen per 13-12-2007]

Article 92. Drawing up of the European search report

The European Patent Office shall, in accordance with the Implementing Regulations, draw up and publish a European search report in respect of the European patent application on the basis of the claims, with due regard to the description and any drawings.

Article 93. Publication of the European patent application

  • 1 The European Patent Office shall publish the European patent application as soon as possible

    • a) after the expiry of a period of eighteen months from the date of filing or, if priority has been claimed, from the date of priority, or

    • b) at the request of the applicant, before the expiry of that period.

  • 2 The European patent application shall be published at the same time as the specification of the European patent when the decision to grant the patent becomes effective before the expiry of the period referred to in paragraph 1(a).

Article 94. Examination of the European patent application

  • 1 The European Patent Office shall, in accordance with the Implementing Regulations, examine on request whether the European patent application and the invention to which it relates meet the requirements of this Convention. The request shall not be deemed to be filed until the examination fee has been paid.

  • 2 If no request for examination has been made in due time, the application shall be deemed to be withdrawn.

  • 3 If the examination reveals that the application or the invention to which it relates does not meet the requirements of this Convention, the Examining Division shall invite the applicant, as often as necessary, to file his observations and, subject to Article 123, paragraph 1, to amend the application.

  • 4 If the applicant fails to reply in due time to any communication from the Examining Division, the application shall be deemed to be withdrawn.

Article 95. Extension of the period within which requests for examination may be filed [Vervallen per 13-12-2007]

Article 96. Examination of the European patent application [Vervallen per 13-12-2007]

Article 97. Grant or refusal

  • 1 If the Examining Division is of the opinion that the European patent application and the invention to which it relates meet the requirements of this Convention, it shall decide to grant a European patent, provided that the conditions laid down in the Implementing Regulations are fulfilled.

  • 2 If the Examining Division is of the opinion that the European patent application or the invention to which it relates does not meet the requirements of this Convention, it shall refuse the application unless this Convention provides for a different legal consequence.

  • 3 The decision to grant a European patent shall take effect on the date on which the mention of the grant is published in the European Patent Bulletin.

Article 98. Publication of the specification of the European patent

The European Patent Office shall publish the specification of the European patent as soon as possible after the mention of the grant of the European patent has been published in the European Patent Bulletin.

PART V. OPPOSITION AND LIMITATION PROCEDURE

Article 99. Opposition

  • 1 Within nine months of the publication of the mention of the grant of the European patent in the European Patent Bulletin, any person may give notice to the European Patent Office of opposition to that patent, in accordance with the Implementing Regulations. Notice of opposition shall not be deemed to have been filed until the opposition fee has been paid.

  • 2 The opposition shall apply to the European patent in all the Contracting States in which that patent has effect.

  • 3 Opponents shall be parties to the opposition proceedings as well as the proprietor of the patent.

  • 4 Where a person provides evidence that in a Contracting State, following a final decision, he has been entered in the patent register of such State instead of the previous proprietor, such person shall, at his request, replace the previous proprietor in respect of such State. Notwithstanding Article 118, the previous proprietor and the person making the request shall not be regarded as joint proprietors unless both so request.

Article 100. Grounds for opposition

Opposition may only be filed on the grounds that:

  • a) the subject-matter of the European patent is not patentable under Articles 52 to 57;

  • b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;

  • c) the subject-matter of the European patent extends beyond the content of the application as filed, or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the content of the earlier application as filed.

Article 101. Examination of the opposition – Revocation or maintenance of the European patent

  • 1 If the opposition is admissible, the Opposition Division shall examine, in accordance with the Implementing Regulations, whether at least one ground for opposition under Article 100 prejudices the maintenance of the European patent. During this examination, the Opposition Division shall invite the parties, as often as necessary, to file observations on communications from another party or issued by itself.

  • 2 If the Opposition Division is of the opinion that at least one ground for opposition prejudices the maintenance of the European patent, it shall revoke the patent. Otherwise, it shall reject the opposition.

  • 3 If the Opposition Division is of the opinion that, taking into consideration the amendments made by the proprietor of the European patent during the opposition proceedings, the patent and the invention to which it relates

    • a) meet the requirements of this Convention, it shall decide to maintain the patent as amended, provided that the conditions laid down in the Implementing Regulations are fulfilled;

    • b) do not meet the requirements of this Convention, it shall revoke the patent.

Article 102. Revocation or maintenance of the European patent [Vervallen per 13-12-2007]

Article 103. Publication of a new specification of the European patent

If the European patent is maintained as amended under Article 101, paragraph 3(a), the European Patent Office shall publish a new specification of the European patent as soon as possible after the mention of the opposition decision has been published in the European Patent Bulletin.

Article 104. Costs

  • 1 Each party to the opposition proceedings shall bear the costs it has incurred, unless the Opposition Division, for reasons of equity, orders, in accordance with the Implementing Regulations, a different apportionment of costs.

  • 3 Any final decision of the European Patent Office fixing the amount of costs shall be dealt with, for the purpose of enforcement in the Contracting States, in the same way as a final decision given by a civil court of the State in which enforcement is to take place. Verification of such decision shall be limited to its authenticity.

Article 105. Intervention of the assumed infringer

  • 1 Any third party may, in accordance with the Implementing Regulations, intervene in opposition proceedings after the opposition period has expired, if the third party proves that

    • a) proceedings for infringement of the same patent have been instituted against him, or

    • b) following a request of the proprietor of the patent to cease alleged infringement, the third party has instituted proceedings for a ruling that he is not infringing the patent.

  • 2 An admissible intervention shall be treated as an opposition.

Article 105a. Request for limitation or revocation

  • 1 At the request of the proprietor, the European patent may be revoked or be limited by an amendment of the claims. The request shall be filed with the European Patent Office in accordance with the Implementing Regulations. It shall not be deemed to have been filed until the limitation or revocation fee has been paid.

  • 2 The request may not be filed while opposition proceedings in respect of the European patent are pending.

Article 105b. Limitation or revocation of the European patent

  • 1 The European Patent Office shall examine whether the requirements laid down in the Implementing Regulations for limiting or revoking the European patent have been met.

  • 2 If the European Patent Office considers that the request for limitation or revocation of the European patent meets these requirements, it shall decide to limit or revoke the European patent in accordance with the Implementing Regulations. Otherwise, it shall reject the request.

  • 3 The decision to limit or revoke the European patent shall apply to the European patent in all the Contracting States in respect of which it has been granted. It shall take effect on the date on which the mention of the decision is published in the European Patent Bulletin.

Article 105c. Publication of the amended specification of the European patent

If the European patent is limited under Article 105b, paragraph 2, the European Patent Office shall publish the amended specification of the European patent as soon as possible after the mention of the limitation has been published in the European Patent Bulletin.

PART VI. APPEALS PROCEDURE

Article 106. Decisions subject to appeal

  • 1 An appeal shall lie from decisions of the Receiving Section, Examining Divisions, Opposition Divisions and the Legal Division. It shall have suspensive effect.

  • 2 A decision which does not terminate proceedings as regards one of the parties can only be appealed together with the final decision, unless the decision allows a separate appeal.

  • 3 The right to file an appeal against decisions relating to the apportionment or fixing of costs in opposition proceedings may be restricted in the Implementing Regulations.

Article 107. Persons entitled to appeal and to be parties to appeal proceedings

Any party to proceedings adversely affected by a decision may appeal. Any other parties to the proceedings shall be parties to the appeal proceedings as of right.

Article 108. Time limit and form

Notice of appeal shall be filed, in accordance with the Implementing Regulations, at the European Patent Office within two months of notification of the decision. Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid. Within four months of notification of the decision, a statement setting out the grounds of appeal shall be filed in accordance with the Implementing Regulations.

Article 109. Interlocutory revision

  • 1 If the department whose decision is contested considers the appeal to be admissible and well founded, it shall rectify its decision. This shall not apply where the appellant is opposed by another party to the proceedings.

  • 2 If the appeal is not allowed within three months of receipt of the statement of grounds, it shall be remitted to the Board of Appeal without delay, and without comment as to its merit.

Article 110. Examination of appeals

If the appeal is admissible, the Board of Appeal shall examine whether the appeal is allowable. The examination of the appeal shall be conducted in accordance with the Implementing Regulations.

Article 111. Decision in respect of appeals

  • 1 Following the examination as to the allowability of the appeal, the Board of Appeal shall decide on the appeal. The Board of Appeal may either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution.

  • 2 If the Board of Appeal remits the case for further prosecution to the department whose decision was appealed, that department shall be bound by the ratio decidendi of the Board of Appeal, in so far as the facts are the same. If the decision under appeal was taken by the Receiving Section, the Examining Division shall also be bound by the ratio decidendi of the Board of Appeal.

Article 112. Decision or opinion of the Enlarged Board of Appeal

  • 1 In order to ensure uniform application of the law, or if a point of law of fundamental importance arises:

    • a) the Board of Appeal shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes. If the Board of Appeal rejects the request, it shall give the reasons in its final decision;

    • b) the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.

  • 2 In the cases referred to in paragraph 1(a) the parties to the appeal proceedings shall be parties to the proceedings before the Enlarged Board of Appeal.

  • 3 The decision of the Enlarged Board of Appeal referred to in paragraph 1(a) shall be binding on the Board of Appeal in respect of the appeal in question.

Article 112a. Petition for review by the Enlarged Board of Appeal

  • 1 Any party to appeal proceedings adversely affected by the decision of the Board of Appeal may file a petition for review of the decision by the Enlarged Board of Appeal.

  • 2 The petition may only be filed on the grounds that:

    • a) a member of the Board of Appeal took part in the decision in breach of Article 24, paragraph 1, or despite being excluded pursuant to a decision under Article 24, paragraph 4;

    • b) the Board of Appeal included a person not appointed as a member of the Boards of Appeal;

    • c) a fundamental violation of Article 113 occurred;

    • d) any other fundamental procedural defect defined in the Implementing Regulations occurred in the appeal proceedings; or

    • e) a criminal act established under the conditions laid down in the Implementing Regulations may have had an impact on the decision.

  • 3 The petition for review shall not have suspensive effect.

  • 4 The petition for review shall be filed in a reasoned statement, in accordance with the Implementing Regulations. If based on paragraph 2(a) to (d), the petition shall be filed within two months of notification of the decision of the Board of Appeal. If based on paragraph 2(e), the petition shall be filed within two months of the date on which the criminal act has been established and in any event no later than five years from notification of the decision of the Board of Appeal. The petition shall not be deemed to have been filed until after the prescribed fee has been paid.

  • 5 The Enlarged Board of Appeal shall examine the petition for review in accordance with the Implementing Regulations. If the petition is allowable, the Enlarged Board of Appeal shall set aside the decision and shall re-open proceedings before the Boards of Appeal in accordance with the Implementing Regulations.

  • 6 Any person who, in a designated Contracting State, has in good faith used or made effective and serious preparations for using an invention which is the subject of a published European patent application or a European patent in the period between the decision of the Board of Appeal and publication in the European Patent Bulletin of the mention of the decision of the Enlarged Board of Appeal on the petition, may without payment continue such use in the course of his business or for the needs thereof.

PART VII. COMMON PROVISIONS

CHAPTER I. COMMON PROVISIONS GOVERNING PROCEDURE

Article 113. Right to be heard and basis of decisions

  • 1 The decisions of the European Patent Office may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments.

  • 2 The European Patent Office shall examine, and decide upon, the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent.

Article 114. Examination by the European Patent Office of its own motion

  • 1 In proceedings before it, the European Patent Office shall examine the facts of its own motion; it shall not be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.

  • 2 The European Patent Office may disregard facts or evidence which are not submitted in due time by the parties concerned.

Article 115. Observations by third parties

In proceedings before the European Patent Office, following the publication of the European patent application, any third party may, in accordance with the Implementing Regulations, present observations concerning the patentability of the invention to which the application or patent relates. That person shall not be a party to the proceedings.

Article 116. Oral proceedings

  • 1 Oral proceedings shall take place either at the instance of the European Patent Office if it considers this to be expedient or at the request of any party to the proceedings. However, the European Patent Office may reject a request for further oral proceedings before the same department where the parties and the subject of the proceedings are the same.

  • 2 Nevertheless, oral proceedings shall take place before the Receiving Section at the request of the applicant only where the Receiving Section considers this to be expedient or where it intends to refuse the European patent application.

  • 3 Oral proceedings before the Receiving Section, the Examining Divisions and the Legal Division shall not be public.

  • 4 Oral proceedings, including delivery of the decision, shall be public, as regards the Boards of Appeal and the Enlarged Board of Appeal, after publication of the European patent application, and also before the Opposition Divisions, in so far as the department before which the proceedings are taking place does not decide otherwise in cases where admission of the public could have serious and unjustified disadvantages, in particular for a party to the proceedings.

Article 117. Means and taking of evidence

  • 1 In proceedings before the European Patent Office the means of giving or obtaining evidence shall include the following:

    • a) hearing the parties;

    • b) requests for information;

    • c) production of documents;

    • d) hearing witnesses;

    • e) opinions by experts;

    • f) inspection;

    • g) sworn statements in writing.

Article 118. Unity of the European patent application or European patent

Where the applicants for or proprietors of a European patent are not the same in respect of different designated Contracting States, they shall be regarded as joint applicants or proprietors for the purposes of proceedings before the European Patent Office. The unity of the application or patent in these proceedings shall not be affected; in particular the text of the application or patent shall be uniform for all designated Contracting States, unless this Convention provides otherwise.

Article 119. Notification

Decisions, summonses, notices and communications shall be notified by the European Patent Office of its own motion in accordance with the Implementing Regulations. Notification may, where exceptional circumstances so require, be effected through the intermediary of the central industrial property offices of the Contracting States.

Article 120. Time limits

The Implementing Regulations shall specify:

  • a) the time limits which are to be observed in proceedings before the European Patent Office and are not fixed by this Convention;

  • b) the manner of computation of time limits and the conditions under which time limits may be extended;

  • c) the minima and maxima for time limits to be determined by the European Patent Office.

Article 121. Further processing of the European patent application

  • 1 If an applicant fails to observe a time limit vis-à-vis the European Patent Office, he may request further processing of the European patent application.

  • 2 The European Patent Office shall grant the request, provided that the requirements laid down in the Implementing Regulations are met. Otherwise, it shall reject the request.

  • 3 If the request is granted, the legal consequences of the failure to observe the time limit shall be deemed not to have ensued.

Article 122. Re-establishment of rights

  • 1 An applicant for or proprietor of a European patent who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit vis-à-vis the European Patent Office shall have his rights re-established upon request if the non-observance of this time limit has the direct consequence of causing the refusal of the European patent application or of a request, or the deeming of the application to have been withdrawn, or the revocation of the European patent, or the loss of any other right or means of redress.

  • 2 The European Patent Office shall grant the request, provided that the conditions of paragraph 1 and any other requirements laid down in the Implementing Regulations are met. Otherwise, it shall reject the request.

  • 3 If the request is granted, the legal consequences of the failure to observe the time limit shall be deemed not to have ensued.

  • 4 Re-establishment of rights shall be ruled out in respect of the time limit for requesting re-establishment of rights. The Implementing Regulations may rule out re-establishment for other time limits.

  • 5 Any person who, in a designated Contracting State, has in good faith used or made effective and serious preparations for using an invention which is the subject of a published European patent application or a European patent in the period between the loss of rights referred to in paragraph 1 and publication in the European Patent Bulletin of the mention of re-establishment of those rights, may without payment continue such use in the course of his business or for the needs thereof.

  • 6 Nothing in this Article shall limit the right of a Contracting State to grant re-establishment of rights in respect of time limits provided for in this Convention and to be observed vis-à-vis the authorities of such State.

Article 123. Amendments

  • 1 The European patent application or European patent may be amended in proceedings before the European Patent Office, in accordance with the Implementing Regulations. In any event, the applicant shall be given at least one opportunity to amend the application of his own volition.

  • 2 The European patent application or European patent may not be amended in such a way that it contains subject-matter which extends beyond the content of the application as filed.

  • 3 The European patent may not be amended in such a way as to extend the protection it confers.

Article 124. Information on prior art

  • 1 The European Patent Office may, in accordance with the Implementing Regulations, invite the applicant to provide information on prior art taken into consideration in national or regional patent proceedings and concerning an invention to which the European patent application relates.

  • 2 If the applicant fails to reply in due time to an invitation under paragraph 1, the European patent application shall be deemed to be withdrawn.

Article 125. Reference to general principles

In the absence of procedural provisions in this Convention, the European Patent Office shall take into account the principles of procedural law generally recognised in the Contracting States.

Article 126. Termination of financial obligations [Vervallen per 13-12-2007]

CHAPTER II. INFORMATION TO THE PUBLIC OR OFFICIAL AUTHORITIES

Article 127. European Patent Register

The European Patent Office shall keep a European Patent Register, in which the particulars specified in the Implementing Regulations shall be recorded. No entry shall be made in the European Patent Register before the publication of the European patent application. The European Patent Register shall be open to public inspection.

Article 128. Inspection of files

  • 1 Files relating to European patent applications which have not yet been published shall not be made available for inspection without the consent of the applicant.

  • 2 Any person who can prove that the applicant has invoked the rights under the European patent application against him may obtain inspection of the files before the publication of that application and without the consent of the applicant.

  • 3 Where a European divisional application or a new European patent application filed under Article 61, paragraph 1, is published, any person may obtain inspection of the files of the earlier application before the publication of that application and without the consent of the applicant.

  • 4 After the publication of the European patent application, the files relating to the application and the resulting European patent may be inspected on request, subject to the restrictions laid down in the Implementing Regulations.

  • 5 Even before the publication of the European patent application, the European Patent Office may communicate to third parties or publish the particulars specified in the Implementing Regulations.

Article 129. Periodical publications

The European Patent Office shall periodically publish:

  • a) a European Patent Bulletin containing the particulars the publication of which is prescribed by this Convention, the Implementing Regulations or the President of the European Patent Office;

  • b) an Official Journal containing notices and information of a general character issued by the President of the European Patent Office, as well as any other information relevant to this Convention or its implementation.

Article 130. Exchange of information

  • 1 Unless this Convention or national laws provide otherwise, the European Patent Office and the central industrial property office of any Contracting State shall, on request, communicate to each other any useful information regarding European or national patent applications and patents and any proceedings concerning them.

  • 2 Paragraph 1 shall apply to the communication of information by virtue of working agreements between the European Patent Office and

    • a) the central industrial property offices of other States;

    • b) any intergovernmental organisation entrusted with the task of granting patents;

    • c) any other organisation.

  • 3 Communications under paragraphs 1 and 2(a) and (b) shall not be subject to the restrictions laid down in Article 128. The Administrative Council may decide that communications under paragraph 2(c) shall not be subject to such restrictions, provided that the organisation concerned treats the information communicated as confidential until the European patent application has been published.

Article 131. Administrative and legal co-operation

  • 1 Unless this Convention or national laws provide otherwise, the European Patent Office and the courts or authorities of Contracting States shall on request give assistance to each other by communicating information or opening files for inspection. Where the European Patent Office makes files available for inspection by courts, Public Prosecutors’ Offices or central industrial property offices, the inspection shall not be subject to the restrictions laid down in Article 128.

  • 2 At the request of the European Patent Office, the courts or other competent authorities of Contracting States shall undertake, on behalf of the Office and within the limits of their jurisdiction, any necessary enquiries or other legal measures.

Article 132. Exchange of publications

  • 1 The European Patent Office and the central industrial property offices of the Contracting States shall despatch to each other on request and for their own use one or more copies of their respective publications free of charge.

  • 2 The European Patent Office may conclude agreements relating to the exchange or supply of publications.

CHAPTER III. REPRESENTATION

Article 133. General principles of representation

  • 1 Subject to paragraph 2, no person shall be compelled to be represented by a professional representative in proceedings established by this Convention.

  • 2 Natural or legal persons not having their residence or principal place of business in a Contracting State shall be represented by a professional representative and act through him in all proceedings established by this Convention, other than in filing a European patent application; the Implementing Regulations may permit other exceptions.

  • 3 Natural or legal persons having their residence or principal place of business in a Contracting State may be represented in proceedings established by this Convention by an employee, who need not be a professional representative but who shall be authorised in accordance with the Implementing Regulations. The Implementing Regulations may provide whether and under what conditions an employee of a legal person may also represent other legal persons which have their principal place of business in a Contracting State and which have economic connections with the first legal person.

  • 4 The Implementing Regulations may lay down special provisions concerning the common representation of parties acting in common.

Article 134. Representation before the European Patent Office

  • 1 Representation of natural or legal persons in proceedings established by this Convention may only be undertaken by professional representatives whose names appear on a list maintained for this purpose by the European Patent Office.

  • 2 Any natural person who

    • a) is a national of a Contracting State,

    • b) has his place of business or employment in a Contracting State and

    • c) has passed the European qualifying examination

    may be entered on the list of professional representatives.

  • 3 During a period of one year from the date on which the accession of a State to this Convention takes effect, entry on that list may also be requested by any natural person who

    • a) is a national of a Contracting State,

    • b) has his place of business or employment in the State having acceded to the Convention and

    • c) is entitled to represent natural or legal persons in patent matters before the central industrial property office of that State. Where such entitlement is not conditional upon the requirement of special professional qualifications, the person shall have regularly so acted in that State for at least five years.

  • 4 Entry shall be effected upon request, accompanied by certificates indicating that the conditions laid down in paragraph 2 or 3 are fulfilled.

  • 5 Persons whose names appear on the list of professional representatives shall be entitled to act in all proceedings established by this Convention.

  • 6 For the purpose of acting as a professional representative, any person whose name appears on the list of professional representatives shall be entitled to establish a place of business in any Contracting State in which proceedings established by this Convention may be conducted, having regard to the Protocol on Centralisation annexed to this Convention. The authorities of such State may remove that entitlement in individual cases only in application of legal provisions adopted for the purpose of protecting public security and law and order. Before such action is taken, the President of the European Patent Office shall be consulted.

  • 7 The President of the European Patent Office may grant exemption from:

    • a) the requirement of paragraphs 2(a) or 3(a) in special circumstances;

    • b) the requirement of paragraph 3(c), second sentence, if the applicant furnishes proof that he has acquired the requisite qualification in another way.

  • 8 Representation in proceedings established by this Convention may also be undertaken, in the same way as by a professional representative, by any legal practitioner qualified in a Contracting State and having his place of business in that State, to the extent that he is entitled in that State to act as a professional representative in patent matters. Paragraph 6 shall apply mutatis mutandis.

Article 134a. Institute of Professional Representatives before the European Patent Office

  • 1 The Administrative Council shall be competent to adopt and amend provisions governing:

    • a) the Institute of Professional Representatives before the European Patent Office, hereinafter referred to as the Institute;

    • b) the qualifications and training required of a person for admission to the European qualifying examination and the conduct of such examination;

    • c) the disciplinary power exercised by the Institute or the European Patent Office in respect of professional representatives;

    • d) the obligation of confidentiality on the professional representative and the privilege from disclosure in proceedings before the European Patent Office in respect of communications between a professional representative and his client or any other person.

  • 2 Any person entered on the list of professional representatives referred to in Article 134, paragraph 1, shall be a member of the Institute.

PART VIII. IMPACT ON NATIONAL LAW

CHAPTER I. CONVERSION INTO A NATIONAL PATENT APPLICATION

Article 135. Request for conversion

  • 1 The central industrial property office of a designated Contracting State shall, at the request of the applicant for or proprietor of a European patent, apply the procedure for the grant of a national patent in the following circumstances:

    • a) where the European patent application is deemed to be withdrawn under Article 77, paragraph 3;

    • b) in such other cases as are provided for by the national law, in which the European patent application is refused or withdrawn or deemed to be withdrawn, or the European patent is revoked under this Convention.

  • 2 In the case referred to in paragraph 1(a), the request for conversion shall be filed with the central industrial property office with which the European patent application has been filed. That office shall, subject to the provisions governing national security, transmit the request directly to the central industrial property offices of the Contracting States specified therein.

  • 3 In the cases referred to in paragraph 1(b), the request for conversion shall be submitted to the European Patent Office in accordance with the Implementing Regulations. It shall not be deemed to be filed until the conversion fee has been paid. The European Patent Office shall transmit the request to the central industrial property offices of the Contracting States specified therein.

  • 4 The effect of the European patent application referred to in Article 66 shall lapse if the request for conversion is not submitted in due time.

Article 136. Submission and transmission of the request [Vervallen per 13-12-2007]

Article 137. Formal requirements for conversion

  • 1 A European patent application transmitted in accordance with Article 135, paragraph 2 or 3, shall not be subjected to formal requirements of national law which are different from or additional to those provided for in this Convention.

  • 2 Any central industrial property office to which the European patent application is transmitted may require that the applicant shall, within a period of not less than two months:

    • a) pay the national application fee; and

    • b) file a translation of the original text of the European patent application in an official language of the State in question and, where appropriate, of the text as amended during proceedings before the European Patent Office which the applicant wishes to use as the basis for the national procedure.

CHAPTER II. REVOCATION AND PRIOR RIGHTS

Article 138. Revocation of European patents

  • 1 Subject to Article 139, a European patent may be revoked with effect for a Contracting State only on the grounds that:

    • a) the subject-matter of the European patent is not patentable under Articles 52 to 57;

    • b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;

    • c) the subject-matter of the European patent extends beyond the content of the application as filed or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the content of the earlier application as filed;

    • d) the protection conferred by the European patent has been extended; or

    • e) the proprietor of the European patent is not entitled under Article 60, paragraph 1.

  • 2 If the grounds for revocation affect the European patent only in part, the patent shall be limited by a corresponding amendment of the claims and revoked in part.

  • 3 In proceedings before the competent court or authority relating to the validity of the European patent, the proprietor of the patent shall have the right to limit the patent by amending the claims. The patent as thus limited shall form the basis for the proceedings.

Article 139. Prior rights and rights arising on the same date

  • 1 In any designated Contracting State a European patent application and a European patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent.

  • 2 A national patent application and a national patent in a Contracting State shall have with regard to a European patent designating that Contracting State the same prior right effect as if the European patent were a national patent.

  • 3 Any Contracting State may prescribe whether and on what terms an invention disclosed in both a European patent application or patent and a national application or patent having the same date of filing or, where priority is claimed, the same date of priority, may be protected simultaneously by both applications or patents.

CHAPTER III. MISCELLANEOUS EFFECTS

Article 140. National utility models and utility certificates

Articles 66, 124, 135, 137 and 139 shall apply to utility models and utility certificates and to applications for utility models and utility certificates registered or deposited in the Contracting States whose laws make provision for such models or certificates.

Article 141. Renewal fees for a European patent

  • 1 Renewal fees for a European patent may only be imposed for the years which follow that referred to in Article 86, paragraph 2.

  • 2 Any renewal fees falling due within two months of the publication in the European Patent Bulletin of the mention of the grant of the European patent shall be deemed to have been validly paid if they are paid within that period. Any additional fee provided for under national law shall not be charged.

PART IX. SPECIAL AGREEMENTS

Article 142. Unitary patents

  • 1 Any group of Contracting States, which has provided by a special agreement that a European patent granted for those States has a unitary character throughout their territories, may provide that a European patent may only be granted jointly in respect of all those States.

  • 2 Where any group of Contracting States has availed itself of the authorization given in paragraph 1, the provisions of this Part shall apply.

Article 143. Special departments of the European Patent Office

  • 1 The group of Contracting States may give additional tasks to the European Patent Office.

  • 2 Special departments common to the Contracting States in the group may be set up within the European Patent Office in order to carry out the additional tasks. The President of the European Patent Office shall direct such special departments; Article 10, paragraphs 2 and 3, shall apply mutatis mutandis.

Article 144. Representation before special departments

The group of Contracting States may lay down special provisions to govern representation of parties before the departments referred to in Article 143, paragraph 2.

Article 145. Select committee of the Administrative Council

  • 1 The group of Contracting States may set up a select committee of the Administrative Council for the purpose of supervising the activities of the special departments set up under Article 143, paragraph 2; the European Patent Office shall place at its disposal such staff, premises and equipment as may be necessary for the performance of its duties. The President of the European Patent Office shall be responsible for the activities of the special departments to the select committee of the Administrative Council.

  • 2 The composition, powers and functions of the select committee shall be determined by the group of Contracting States.

Article 146. Cover for expenditure for carrying out special tasks

Where additional tasks have been given to the European Patent Office under Article 143, the group of Contracting States shall bear the expenses incurred by the Organisation in carrying out these tasks. Where special departments have been set up in the European Patent Office to carry out these additional tasks, the group shall bear the expenditure on staff, premises and equipment chargeable in respect of these departments. Article 39, paragraphs 3 and 4, Article 41 and Article 47 shall apply mutatis mutandis.

Article 147. Payments in respect of renewal fees for unitary patents

If the group of Contracting States has fixed a common scale of renewal fees in respect of European patents the proportion referred to in Article 39, paragraph 1, shall be calculated on the basis of the common scale; the minimum amount referred to in Article 39, paragraph 1, shall apply to the unitary patent. Article 39, paragraphs 3 and 4, shall apply mutatis mutandis.

Article 148. The European patent application as an object of property

  • 1 Article 74 shall apply unless the group of Contracting States has specified otherwise.

  • 2 The group of Contracting States may provide that a European patent application for which these Contracting States are designated may only be transferred, mortgaged or subjected to any legal means of execution in respect of all the Contracting States of the group and in accordance with the provisions of the special agreement.

Article 149. Joint designation

  • 1 The group of Contracting States may provide that these States may only be designated jointly, and that the designation of one or some only of such States shall be deemed to constitute the designation of all the States of the group.

  • 2 Where the European Patent Office acts as a designated Office under Article 153, paragraph 1, paragraph 1 shall apply if the applicant has indicated in the international application that he wishes to obtain a European patent for one or more of the designated States of the group. The same shall apply if the applicant designates in the international application one of the Contracting States in the group, whose national law provides that the designation of that State shall have the effect of the application being for a European patent.

Article 149a. Other agreements between the Contracting States

  • 1 Nothing in this Convention shall be construed as limiting the right of some or all of the Contracting States to conclude special agreements on any matters concerning European patent applications or European patents which under this Convention are subject to and governed by national law, such as, in particular

    • a) an agreement establishing a European patent court common to the Contracting States party to it;

    • b) an agreement establishing an entity common to the Contracting States party to it to deliver, at the request of national courts or quasi-judicial authorities, opinions on issues of European or harmonised national patent law;

    • c) an agreement under which the Contracting States party to it dispense fully or in part with translations of European patents under Article 65;

    • d) an agreement under which the Contracting States party to it provide that translations of European patents as required under Article 65 may be filed with, and published by, the European Patent Office.

  • 2 The Administrative Council shall be competent to decide that:

    • a) the members of the Boards of Appeal or the Enlarged Board of Appeal may serve on a European patent court or a common entity and take part in proceedings before that court or entity in accordance with any such agreement;

    • b) the European Patent Office shall provide a common entity with such support staff, premises and equipment as may be necessary for the performance of its duties, and the expenses incurred by that entity shall be borne fully or in part by the Organisation.

PART X. INTERNATIONAL APPLICATIONS UNDER THE PATENT COOPERATION TREATY – EURO-PCT APPLICATIONS

Article 150. Application of the Patent Cooperation Treaty

  • 1 The Patent Cooperation Treaty of 19 June 1970, hereinafter referred to as the PCT, shall be applied in accordance with the provisions of this Part.

  • 2 International applications filed under the PCT may be the subject of proceedings before the European Patent Office. In such proceedings, the provisions of the PCT and its Regulations shall be applied, supplemented by the provisions of this Convention. In case of conflict, the provisions of the PCT or its Regulations shall prevail.

Article 151. The European Patent Office as a receiving Office

The European Patent Office shall act as a receiving Office within the meaning of the PCT, in accordance with the Implementing Regulations. Article 75, paragraph 2, shall apply.

Article 152. The European Patent Office as an International Searching Authority or International Preliminary Examining Authority

The European Patent Office shall act as an International Searching Authority and International Preliminary Examining Authority within the meaning of the PCT, in accordance with an agreement between the Organisation and the International Bureau of the World Intellectual Property Organization, for applicants who are residents or nationals of a State party to this Convention. This agreement may provide that the European Patent Office shall also act for other applicants.

Article 153. The European Patent Office as designated Office or elected Office

  • 1 The European Patent Office shall be

    • a) a designated Office for any State party to this Convention in respect of which the PCT is in force, which is designated in the international application and for which the applicant wishes to obtain a European patent, and

    • b) an elected Office, if the applicant has elected a State designated pursuant to letter (a).

  • 2 An international application for which the European Patent Office is a designated or elected Office, and which has been accorded an international date of filing, shall be equivalent to a regular European application (Euro-PCT application).

  • 3 The international publication of a Euro-PCT application in an official language of the European Patent Office shall take the place of the publication of the European patent application and shall be mentioned in the European Patent Bulletin.

  • 4 If the Euro-PCT application is published in another language, a translation into one of the official languages shall be filed with the European Patent Office, which shall publish it. Subject to Article 67, paragraph 3, the provisional protection under Article 67, paragraphs 1 and 2, shall be effective from the date of that publication.

  • 5 The Euro-PCT application shall be treated as a European patent application and shall be considered as comprised in the state of the art under Article 54, paragraph 3, if the conditions laid down in paragraph 3 or 4 and in the Implementing Regulations are fulfilled.

  • 6 The international search report drawn up in respect of a Euro-PCT application or the declaration replacing it, and their international publication, shall take the place of the European search report and the mention of its publication in the European Patent Bulletin.

  • 7 A supplementary European search report shall be drawn up in respect of any Euro-PCT application under paragraph 5. The Administrative Council may decide that the supplementary search report is to be dispensed with or that the search fee is to be reduced.

Article 154. The European Patent Office as an International Searching Authority [Vervallen per 13-12-2007]

Article 155. The European Patent Office as an International Preliminary Examining Authority [Vervallen per 13-12-2007]

Article 156. The European Patent Office as an elected Office [Vervallen per 13-12-2007]

Article 157. International search report [Vervallen per 13-12-2007]

Article 158. Publication of the international application and its supply to the European Patent Office [Vervallen per 13-12-2007]

PART XI. TRANSITIONAL PROVISIONS

Article 159. Administrative Council during a transitional period [Vervallen per 13-12-2007]

Article 160. Appointment of employees during a transitional period [Vervallen per 13-12-2007]

Article 161. First accounting period [Vervallen per 13-12-2007]

Article 162. Progressive expansion of the field of activity of the European Patent Office [Vervallen per 13-12-2007]

Article 163. Professional representatives during a transitional period [Vervallen per 13-12-2007]

PART XII. FINAL PROVISIONS

Article 164. Implementing Regulations and Protocols

  • 2 In case of conflict between the provisions of this Convention and those of the Implementing Regulations, the provisions of this Convention shall prevail.

Article 165. Signature – Ratification

  • 1 This Convention shall be open for signature until 5 April 1974 by the States which took part in the Inter-Governmental Conference for the setting up of a European System for the Grant of Patents or were informed of the holding of that conference and offered the option of taking part therein.

  • 2 This Convention shall be subject to ratification; instruments of ratification shall be deposited with the Government of the Federal Republic of Germany.

Article 166. Accession

  • 1 This Convention shall be open to accession by:

    • a) the States referred to in Article 165, paragraph 1;

    • b) any other European State at the invitation of the Administrative Council.

  • 2 Any State which has been a party to the Convention and has ceased to be so as a result of the application of Article 172, paragraph 4, may again become a party to the Convention by acceding to it.

  • 3 Instruments of accession shall be deposited with the Government of the Federal Republic of Germany.

Article 167. Reservations [Vervallen per 13-12-2007]

Article 168. Territorial field of application

  • 1 Any Contracting State may declare in its instrument of ratification or accession, or may inform the Government of the Federal Republic of Germany by written notification at any time thereafter, that this Convention shall be applicable to one or more of the territories for the external relations of which it is responsible. European patents granted for that Contracting State shall also have effect in the territories for which such a declaration has taken effect.

  • 2 If the declaration referred to in paragraph 1 is contained in the instrument of ratification or accession, it shall take effect on the same date as the ratification or accession; if the declaration is notified after the deposit of the instrument of ratification or accession, such notification shall take effect six months after the date of its receipt by the Government of the Federal Republic of Germany.

  • 3 Any Contracting State may at any time declare that the Convention shall cease to apply to some or to all of the territories in respect of which it has given notification pursuant to paragraph 1. Such declaration shall take effect one year after the date on which the Government of the Federal Republic of Germany received notification thereof.

Article 169. Entry into force

  • 1 This Convention shall enter into force three months after the deposit of the last instrument of ratification or accession by six States on whose territory the total number of patent applications filed in 1970 amounted to at least 180 000 for all the said States.

  • 2 Any ratification or accession after the entry into force of this Convention shall take effect on the first day of the third month after the deposit of the instrument of ratification or accession.

Article 170. Initial contribution

  • 1 Any State which ratifies or accedes to this Convention after its entry into force shall pay to the Organisation an initial contribution, which shall not be refunded.

  • 2 The initial contribution shall be 5% of an amount calculated by applying the percentage obtained for the State in question, on the date on which ratification or accession takes effect, in accordance with the scale provided for in Article 40, paragraphs 3 and 4, to the sum of the special financial contributions due from the other Contracting States in respect of the accounting periods preceding the date referred to above.

  • 3 In the event that special financial contributions were not required in respect of the accounting period immediately preceding the date referred to in paragraph 2, the scale of contributions referred to in that paragraph shall be the scale that would have been applicable to the State concerned in respect of the last year for which financial contributions were required.

Article 171. Duration of the Convention

The present Convention shall be of unlimited duration.

Article 172. Revision

  • 1 This Convention may be revised by a Conference of the Contracting States.

  • 2 The Conference shall be prepared and convened by the Administrative Council. The Conference shall not be validly constituted unless at least three-quarters of the Contracting States are represented at it. Adoption of the revise text shall require a majority of three-quarters of the Contracting States represented and voting at the Conference. Abstentions shall not be considered as votes.

  • 3 The revised text shall enter into force when it has been ratified or acceded to by the number of Contracting States specified by the Conference, and at the time specified by that Conference.

  • 4 Such States as have not ratified or acceded to the revised text of the Convention at the time of its entry into force shall cease to be parties to this Convention as from that time.

Article 173. Disputes between Contracting States

  • 1 Any dispute between Contracting States concerning the interpretation or application of the present Convention which is not settled by negotiation shall be submitted, at the request of one of the States concerned, to the Administrative Council, which shall endeavour to bring about agreement between the States concerned.

  • 2 If such agreement is not reached within six months from the date when the dispute was referred to the Administrative Council, any one of the States concerned may submit the dispute to the International Court of Justice for a binding decision.

Article 174. Denunciation

Any Contracting State may at any time denounce this Convention. Denunciation shall be notified to the Government of the Federal Republic of Germany. It shall take effect one year after the date of receipt of such notification.

Article 175. Preservation of acquired rights

  • 1 In the event of a State ceasing to be party to this Convention in accordance with Article 172, paragraph 4, or Article 174, rights already acquired pursuant to this Convention shall not be impaired.

  • 2 A European patent application which is pending when a designated State ceases to be party to the Convention shall be processed by the European Patent Office, as far as that State is concerned, as if the Convention in force thereafter were applicable to that State.

  • 3 Paragraph 2 shall apply to European patents in respect of which, on the date mentioned in that paragraph, an opposition is pending or the opposition period has not expired.

  • 4 Nothing in this Article shall affect the right of any State that has ceased to be a party to this Convention to treat any European patent in accordance with the text to which it was a party.

Article 176. Financial rights and obligations of former Contracting States

  • 1 Any State which has ceased to be a party to this Convention in accordance with Article 172, paragraph 4, or Article 174, shall have the special financial contributions which it has paid pursuant to Article 40, paragraph 2, refunded to it by the Organisation only at the time when and under the conditions whereby the Organisation refunds special financial contributions paid by other States during the same accounting period.

  • 2 The State referred to in paragraph 1 shall, even after ceasing to be a party to this Convention, continue to pay the proportion pursuant to Article 39 of renewal fees in respect of European patents remaining in force in that State, at the rate current on the date on which it ceased to be a party.

Article 177. Languages of the Convention

  • 1 This Convention, drawn up in a single original, in the English, French and German languages, shall be deposited in the archives of the Government of the Federal Republic of Germany, the three texts being equally authentic.

  • 2 The texts of this Convention drawn up in official languages of Contracting States other than those specified in paragraph 1 shall, if they have been approved by the Administrative Council, be considered as official texts. In the event of disagreement on the interpretation of the various texts, the texts referred to in paragraph 1 shall be authentic.

Article 178. Transmission and notifications

  • 1 The Government of the Federal Republic of Germany shall draw up certified true copies of this Convention and shall transmit them to the Governments of all signatory or acceding States.

  • 2 The Government of the Federal Republic of Germany shall notify to the Governments of the States referred to in paragraph 1:

    • a) the deposit of any instrument of ratification or accession;

    • b) any declaration or notification received pursuant to Article 168;

    • c) any denunciation received pursuant to Article 174 and the date on which such denunciation comes into force.

  • 3 The Government of the Federal Republic of Germany shall register this Convention with the Secretariat of the United Nations.

IN WITNESS WHEREOF, the Plenipotentiaries authorised thereto, having presented their Full Powers, found to be in good and due form, have signed this Convention.

DONE at Munich this fifth day of October one thousand nine hundred and seventy-three

Implementing Regulations to the European Patent Convention 2000 as adopted by decision of the Administrative Council of 7 December 2006

PART I. IMPLEMENTING REGULATIONS TO PART I OF THE CONVENTION

CHAPTER I. GENERAL PROVISIONS

Rule 1. Written proceedings

In written proceedings before the European Patent Office, the requirement to use the written form shall be satisfied if the content of the documents can be reproduced in a legible form on paper.

Rule 2. Filing of and formal requirements for documents

  • 1 In proceedings before the European Patent Office, documents may be filed by delivery by hand, by postal services or by means of electronic communication. The President of the European Patent Office shall lay down the details and conditions and, where appropriate, any special formal or technical requirements for the filing of documents. In particular, he may specify that confirmation must be supplied. If such confirmation is not supplied in due time, the European patent application shall be refused; documents filed subsequently shall be deemed not to have been received.

  • 2 Where the Convention provides that a document must be signed, the authenticity of the document may be confirmed by handwritten signature or other appropriate means the use of which has been permitted by the President of the European Patent Office. A document authenticated by such other means shall be deemed to meet the legal requirements of signature in the same way as a document bearing a handwritten signature which has been filed in paper form.

Rule 3. Language in written proceedings

  • 1 In written proceedings before the European Patent Office, any party may use any official language of the European Patent Office. The translation referred to in Article 14, paragraph 4, may be filed in any official language of the European Patent Office.

  • 2 Amendments to a European patent application or European patent shall be filed in the language of the proceedings.

  • 3 Documentary evidence and, in particular, publications may be filed in any language. The European Patent Office may, however, require that a translation in one of its official languages be filed, within a period to be specified. If a required translation is not filed in due time, the European Patent Office may disregard the document in question.

Rule 4. Language in oral proceedings

  • 1 Any party to oral proceedings before the European Patent Office may use an official language of the European Patent Office other than the language of the proceedings, if such party gives notice to the European Patent Office at least one month before the date of such oral proceedings or provides for interpretation into the language of the proceedings. Any party may use an official language of a Contracting State, if he provides for interpretation into the language of the proceedings. The European Patent Office may permit derogations from these provisions.

  • 2 In the course of oral proceedings, employees of the European Patent Office may use an official language of the European Patent Office other than the language of the proceedings.

  • 3 Where evidence is taken, any party, witness or expert to be heard who is unable to express himself adequately in an official language of the European Patent Office or of a Contracting State may use another language. Where evidence is taken upon request of a party, parties, witnesses or experts expressing themselves in a language other than an official language of the European Patent Office shall be heard only if that party provides for interpretation into the language of the proceedings. The European Patent Office may, however, permit interpretation into one of its other official languages.

  • 4 If the parties and the European Patent Office agree, any language may be used.

  • 5 The European Patent Office shall, if necessary, provide at its own expense interpretation into the language of the proceedings, or, where appropriate, into its other official languages, unless such interpretation is the responsibility of one of the parties.

  • 6 Statements by employees of the European Patent Office, parties, witnesses or experts, made in an official language of the European Patent Office, shall be entered in the minutes in that language. Statements made in any other language shall be entered in the official language into which they are translated. Amendments to a European patent application or European patent shall be entered in the minutes in the language of the proceedings.

Rule 5. Certification of translations

Where the translation of a document is required, the European Patent Office may require that a certificate that the translation corresponds to the original text be filed within a period to be specified. If the certificate is not filed in due time, such document shall be deemed not to have been filed, unless otherwise provided.

Rule 6. Filing of translations and reduction of fees

  • 1 A translation under Article 14, paragraph 2, shall be filed within two months of filing the European patent application.

  • 2 A translation under Article 14, paragraph 4, shall be filed within one month of filing the document. This shall also apply to requests under Article 105a. Where the document is a notice of opposition or appeal, or a statement of grounds of appeal, or a petition for review, the translation may be filed within the period for filing such a notice or statement or petition, if that period expires later.

  • 3 Where a person referred to in Article 14, paragraph 4, files a European patent application or a request for examination in a language admitted in that provision, the filing fee or examination fee shall be reduced in accordance with the Rules relating to Fees.

  • 4 The reduction referred to in paragraph 3 shall be available for:

    • a) small and medium-sized enterprises;

    • b) natural persons; or

    • c) non-profit organisations, universities or public research organisations.

  • 5 For the purposes of paragraph 4(a), Commission recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises as published in the Official Journal of the European Union L 124, p. 36 of 20 May 2003 shall apply.

  • 6 An applicant wishing to benefit from the fee reduction referred to in paragraph 3 shall declare himself to be an entity or a natural person within the meaning of paragraph 4. In case of reasonable doubt as to the veracity of such declaration, the Office may require evidence.

  • 7 In case of multiple applicants, each applicant shall be an entity or a natural person within the meaning of paragraph 4.

Rule 7. Legal authenticity of the translation of the European patent application

Unless evidence is provided to the contrary, the European Patent Office shall assume, for the purpose of determining whether the subject-matter of the European patent application or European patent extends beyond the content of the application as filed, that the translation filed under Article 14, paragraph 2, or Rule 40, paragraph 3, is in conformity with the original text of the application.

CHAPTER II. ORGANISATION OF THE EUROPEAN PATENT OFFICE

SECTION 1. GENERAL MATTERS

Rule 8. Patent classification

The European Patent Office shall use the classification referred to in Article 1 of the Strasbourg Agreement concerning the International Patent Classification of 24 March 1971, hereinafter referred to as the international classification.

Rule 9. Administrative structure of the European Patent Office

  • 1 The European Patent Office shall be divided administratively into Directorates-General, to which the departments specified in Article 15(a) to (e), and the services set up to deal with legal matters and the internal administration of the Office, shall be assigned.

  • 2 Each Directorate-General shall be directed by a Vice-President. The assignment of a Vice-President to a Directorate-General shall be decided by the Administrative Council, after the President of the European Patent Office has been consulted.

Rule 10. Responsibility of the Receiving Section and the Examining Division

  • 1 The Receiving Section shall be responsible for the examination on filing and the examination as to formal requirements of a European patent application up to the time when the Examining Division becomes responsible for the examination of the European patent application under Article 94, paragraph 1.

  • 2 Subject to paragraphs 3 and 4, the Examining Division shall be responsible for the examination of a European patent application under Article 94, paragraph 1, from the time when a request for examination is filed.

  • 3 If a request for examination is filed before the European search report has been transmitted to the applicant, the Examining Division shall, subject to paragraph 4, be responsible from the time when the European Patent Office receives the indication under Rule 70, paragraph 2.

  • 4 If a request for examination is filed before the European search report has been transmitted to the applicant, and if the applicant has waived the right under Rule 70, paragraph 2, the Examining Division shall be responsible from the time when the search report is transmitted to the applicant.

Rule 11. Allocation of duties to the departments of first instance

  • 1 Technically qualified examiners acting as members of Search, Examining or Opposition Divisions shall be assigned to Directorates. The President of the European Patent Office shall allocate duties to these Directorates by reference to the international classification.

  • 2 The President of the European Patent Office may allocate further duties to the Receiving Section, the Search, Examining and Opposition Divisions, and the Legal Division, in addition to the responsibilities vested in them under the Convention.

  • 3 The President of the European Patent Office may entrust to employees who are not technically or legally qualified examiners the execution of duties falling to the Search, Examining or Opposition Divisions and involving no technical or legal difficulties.

SECTION 2. ORGANISATION OF THE BOARDS OF APPEAL AND THE ENLARGED BOARD OF APPEAL

Rule 12a. Organisation and management of the Boards of Appeal Unit and President of the Boards of Appeal

  • 1 The Boards of Appeal and the Enlarged Board of Appeal, including their registries and support services, shall be organised as a separate unit (the “Boards of Appeal Unit”) and be directed by the President of the Boards of Appeal. The Chairman of the Enlarged Board of Appeal shall act as President of the Boards of Appeal. The President of the Boards of Appeal shall be appointed by the Administrative Council on a joint proposal made by the Committee established under Rule 12c, paragraph 1, and the President of the European Patent Office. If the President of the Boards of Appeal is absent or indisposed, one of the members of the Enlarged Board of Appeal shall take his place in accordance with the procedure laid down by the Administrative Council.

  • 2 The President of the Boards of Appeal shall manage the Boards of Appeal Unit and, to this end, have the functions and powers delegated to him by the President of the European Patent Office. In exercising the delegated functions and powers, the President of the Boards of Appeal shall be responsible solely to the Administrative Council and shall be subject to its hierarchical and disciplinary authority.

  • 3 Without prejudice to Article 10, paragraph 2(d), and Article 46, the President of the Boards of Appeal shall prepare a substantiated budget request for the Boards of Appeal Unit. This request shall be examined and discussed with the relevant departments of the European Patent Office, and be presented by the President of the Boards of Appeal to the Committee established under Rule 12c, paragraph 1, for opinion, before being forwarded to the President of the European Patent Office for consideration for the yearly draft budget. The President of the European Patent Office shall provide the President of the Boards of Appeal with the necessary resources, as set out in the adopted budget.

  • 4 The President of the European Patent Office shall make the services mentioned in Rule 9, paragraph 1, available to the President of the Boards of Appeal as far as necessary and within the limits of the adopted budget.

Rule 12b. Presidium of the Boards of Appeal and business distribution scheme for the Boards of Appeal

  • 1 The autonomous authority within the Boards of Appeal Unit (the “Presidium of the Boards of Appeal”) shall consist of the President of the Boards of Appeal, who shall act as chairman, and twelve members of the Boards of Appeal, six being Chairmen and six being other members.

  • 2 All members of the Presidium shall be elected by the Chairmen and members of the Boards of Appeal for two working years. If the full composition of the Presidium cannot be reached, the vacancies shall be filled by designating the most senior Chairmen and members.

  • 3 The Presidium shall:

    • a) adopt the Rules of Procedure for the election and designation of its members;

    • b) adopt, without prejudice to regulations adopted in accordance with Article 10, paragraph 2(c), and Article 33, paragraph 2(b), a Code of Conduct for the members and Chairmen of the Boards of Appeal and of the Enlarged Board of Appeal, which shall be subject to the approval of the Administrative Council;

    • c) advise the President of the Boards of Appeal on proposals for amendments to the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal;

    • d) advise the President of the Boards of Appeal on matters concerning the functioning of the Boards of Appeal Unit in general.

  • 4 Before the beginning of each working year, the Presidium, extended to include all Chairmen, shall allocate duties to the Boards of Appeal. In the same composition, it shall decide on conflicts regarding the allocation of duties between two or more Boards of Appeal. The extended Presidium shall designate the regular and alternate members of the various Boards of Appeal. Any member of a Board of Appeal may be designated as a member of more than one Board of Appeal. These measures may, where necessary, be amended during the course of the working year in question.

  • 5 The Presidium may only take a decision if at least five of its members are present; these must include the President of the Boards of Appeal or his deputy, and the Chairmen of two Boards of Appeal. Where the tasks mentioned in paragraph 4 are concerned, nine members must be present, including the President of the Boards of Appeal or his deputy, and the Chairmen of three Boards of Appeal. Decisions shall be taken by a majority vote; in the event of parity of votes, the Chairman or his deputy shall have the casting vote. Abstentions shall not be considered as votes.

Rule 12c. Boards of Appeal Committee and procedure for adoption of the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal

  • 1 The Administrative Council shall set up a committee (the “Boards of Appeal Committee”) to advise it and the President of the Boards of Appeal on the Boards of Appeal Unit in general and to adopt the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal. The Committee shall be composed of six members appointed by the Administrative Council, three from among the delegations of the Contracting States within the meaning of Article 26, and three from among serving or former judges of international or European courts or of national courts of the Contracting States. The President of the European Patent Office and the President of the Boards of Appeal shall have the right to attend the Committee’s meetings. Further details, in particular as to the Committee’s composition, alternate members, working arrangements and functions in advising the Boards of Appeal Unit, shall be determined by the Administrative Council in the decision setting up the Committee.

  • 2 On a proposal from the President of the Boards of Appeal and after the President of the European Patent Office has been given the opportunity to comment, the Committee set up under paragraph 1 shall adopt the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal.

Rule 12d. Appointment and re-appointment of the members, including the Chairmen, of the Boards of Appeal and of the Enlarged Board of Appeal

  • 1 The Chairman of the Enlarged Board of Appeal shall, on his appointment, also be appointed as a legally qualified member of the Boards of Appeal.

  • 2 Upon delegation from the President of the European Patent Office, the President of the Boards of Appeal shall exercise the right to propose the members, including the Chairmen, of the Boards of Appeal and the members of the Enlarged Board of Appeal for appointment by the Administrative Council, and the right to be consulted on their re-appointment (Article 11, paragraph 3) and on the appointment and re-appointment of external legally qualified members (Article 11, paragraph 5).

  • 3 The President of the Boards of Appeal shall exercise the right under paragraph 2 to be consulted on re-appointments by submitting a reasoned opinion, including an evaluation of the member’s or Chairman’s performance, to the Administrative Council. The criteria for evaluating performance shall be set by the President of the Boards of Appeal in consultation with the Committee established under Rule 12c, paragraph 1. Subject to a positive opinion and performance evaluation and the number of posts under Article 11, paragraph 3, available in the adopted budget for the Boards of Appeal Unit, the members, including the Chairmen, of the Boards of Appeal and the members of the Enlarged Board of Appeal shall be re-appointed at the end of their five-year term under Article 23, paragraph 1.

Rule 13. Business distribution scheme for the Enlarged Board of Appeal

Before the beginning of each working year, the members of the Enlarged Board of Appeal appointed under Article 11, paragraph 3, shall designate the regular and alternate members of the Enlarged Board of Appeal in proceedings under Article 22, paragraph 1(a) and (b), and the regular and alternate members in proceedings under Article 22, paragraph 1(c). Decisions may only be taken if at least five members are present, including the Chairman of the Enlarged Board of Appeal or his deputy; in the event of parity of votes, the Chairman or his deputy shall have the casting vote. Abstentions shall not be considered as votes.

PART II. IMPLEMENTING REGULATIONS TO PART II OF THE CONVENTION

CHAPTER I. PROCEDURE WHERE THE APPLICANT IS NOT ENTITLED

Rule 14. Stay of proceedings

  • 1 If a third party provides evidence that he has instituted proceedings against the applicant seeking a decision within the meaning of Article 61, paragraph 1, the proceedings for grant shall be stayed unless the third party communicates to the European Patent Office in writing his consent to the continuation of such proceedings. Such consent shall be irrevocable. However, proceedings for grant shall not be stayed before the publication of the European patent application.

  • 2 Where evidence is provided that a final decision within the meaning of Article 61, paragraph 1, has been taken, the European Patent Office shall inform the applicant and any other party that the proceedings for grant shall be resumed as from the date stated in the communication, unless a new European patent application under Article 61, paragraph 1(b), has been filed for all the designated Contracting States. If the decision is in favour of the third party, the proceedings may not be resumed earlier than three months after the decision has become final, unless the third party requests the resumption.

  • 3 Upon staying the proceedings for grant, or thereafter, the European Patent Office may set a date on which it intends to resume the proceedings for grant, regardless of the stage reached in the national proceedings instituted under paragraph 1. It shall communicate this date to the third party, the applicant and any other party. If no evidence has been provided by that date that a final decision has been taken, the European Patent Office may resume proceedings.

  • 4 All periods other than those for the payment of renewal fees, running at the date of the stay of proceedings, shall be interrupted by such stay. The time which has not yet elapsed shall begin to run from the date on which proceedings are resumed. However, the time still to run after such resumption shall not be less than two months.

Rule 15. Limitation on withdrawals

From the date on which a third party provides evidence that he has instituted national proceedings under Rule 14, paragraph 1, and up to the date on which the proceedings for grant are resumed, neither the European patent application nor the designation of any Contracting State may be withdrawn.

Rule 16. Procedure under Article 61, paragraph 1

  • 1 A person entitled to the grant of a European patent may only avail himself of the remedies under Article 61, paragraph 1, if:

    • a) he does so no later than three months after the decision recognising his entitlement has become final, and

    • b) the European patent has not yet been granted.

  • 2 Such remedies shall only apply in respect of Contracting States designated in the European patent application in which the decision has been taken or recognised or must be recognised on the basis of the Protocol on Recognition.

Rule 17. Filing of a new European patent application by the entitled person

  • 1 Where the person adjudged by a final decision to be entitled to the grant of the European patent files a new European patent application under Article 61, paragraph 1(b), the original application shall be deemed to be withdrawn on the date of filing the new application for the Contracting States designated therein in which the decision has been taken or recognised or must be recognised on the basis of the Protocol on Recognition.

  • 2 The filing fee and search fee shall be paid within one month of filing the new application. If the filing fee or search fee is not paid in due time, the application shall be deemed to be withdrawn.

  • 3 The designation fee shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report drawn up in respect of the new application. Rule 39, paragraphs 2 and 3, shall apply.

Rule 18. Partial transfer of the right to the European patent

  • 1 If a final decision determines that a third party is entitled to the grant of a European patent in respect of only part of the subject-matter disclosed in the original European patent application, Article 61 and Rules 16 and 17 shall apply to such part.

  • 2 Where appropriate, the original European patent application shall contain, for the designated Contracting States in which the decision was taken or recognised or must be recognised on the basis of the Protocol on Recognition, claims, a description and drawings which are different from those for the other designated Contracting States.

CHAPTER II. MENTION OF THE INVENTOR

Rule 19. Designation of the inventor

  • 1 The request for grant of a European patent shall contain the designation of the inventor. However, if the applicant is not the inventor or is not the sole inventor, the designation shall be filed in a separate document. The designation shall state the family name, given names and full address of the inventor, contain the statement referred to in Article 81 and bear the signature of the applicant or his representative.

  • 2 The European Patent Office shall not verify the accuracy of the designation of the inventor.

  • 3 If the applicant is not the inventor or is not the sole inventor, the European Patent Office shall communicate to the designated inventor the information in the document designating him and the following data:

    • a) the number of the European patent application;

    • b) the date of filing of the European patent application and, if priority has been claimed, the date, State and file number of the previous application;

    • c) the name of the applicant;

    • d) the title of the invention;

    • e) the Contracting States designated.

  • 4 The applicant and the inventor may invoke neither the omission of the communication under paragraph 3 nor any errors contained therein.

Rule 20. Publication of the mention of the inventor

  • 1 The designated inventor shall be mentioned in the published European patent application and the European patent specification, unless he informs the European Patent Office in writing that he has waived his right to be thus mentioned.

  • 2 Paragraph 1 shall apply where a third party files with the European Patent Office a final decision determining that the applicant for or proprietor of a European patent is required to designate him as an inventor.

Rule 21. Rectification of the designation of an inventor

  • 1 An incorrect designation of an inventor shall be rectified upon request and only with the consent of the wrongly designated person and, where such a request is filed by a third party, the consent of the applicant for or proprietor of the patent. Rule 19 shall apply mutatis mutandis.

  • 2 Where an incorrect designation of the inventor has been recorded in the European Patent Register or published in the European Patent Bulletin, its rectification or cancellation shall also be recorded or published therein.

CHAPTER III. REGISTRATION OF TRANSFERS, LICENCES AND OTHER RIGHTS

Rule 22. Registration of transfers

  • 1 The transfer of a European patent application shall be recorded in the European Patent Register at the request of an interested party, upon production of documents providing evidence of such transfer.

  • 2 The request shall not be deemed to have been filed until an administrative fee has been paid. It may be rejected only if paragraph 1 has not been complied with.

  • 3 A transfer shall have effect vis-à-vis the European Patent Office only at the date when and to the extent that the documents referred to in paragraph 1 have been produced.

Rule 23. Registration of licences and other rights

  • 1 Rule 22, paragraphs 1 and 2, shall apply mutatis mutandis to the registration of the grant or transfer of a licence, the establishment or transfer of a right in rem in respect of a European patent application and any legal means of execution affecting such an application.

  • 2 A registration under paragraph 1 shall be cancelled upon request, supported by documents providing evidence that the right has lapsed, or by the written consent of the proprietor of the right to the cancellation of the registration. Rule 22, paragraph 2, shall apply mutatis mutandis.

Rule 24. Special entries for licence registrations

A licence in respect of a European patent application shall be recorded

  • a) as an exclusive licence if the applicant and the licensee so request;

  • b) as a sub-licence where it is granted by a licensee whose licence is recorded in the European Patent Register.

CHAPTER IV. CERTIFICATE OF EXHIBITION

Rule 25. Certificate of exhibition

Within four months of filing the European patent application, the applicant shall file the certificate referred to in Article 55, paragraph 2, which:

  • a) is issued at the exhibition by the authority responsible for the protection of industrial property at that exhibition;

  • b) states that the invention was in fact displayed there;

  • c) states the opening date of the exhibition and, where the invention was disclosed later than on that date, the date on which the invention was first disclosed; and

  • d) is accompanied by an identification of the invention, duly authenticated by the above-mentioned authority.

CHAPTER V. BIOTECHNOLOGICAL INVENTIONS

Rule 26. General and definitions

  • 1 For European patent applications and patents concerning biotechnological inventions, the relevant provisions of the Convention shall be applied and interpreted in accordance with the provisions of this Chapter. Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions shall be used as a supplementary means of interpretation.

  • 2 “Biotechnological inventions” are inventions which concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used.

  • 3 “Biological material” means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system.

  • 4 “Plant variety” means any plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:

    • a) defined by the expression of the characteristics that results from a given genotype or combination of genotypes,

    • b) distinguished from any other plant grouping by the expression of at least one of the said characteristics, and

    • c) considered as a unit with regard to its suitability for being propagated unchanged.

  • 5 A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection.

  • 6 “Microbiological process” means any process involving or performed upon or resulting in microbiological material.

Rule 27. Patentable biotechnological inventions

Biotechnological inventions shall also be patentable if they concern:

  • a) biological material which is isolated from its natural environment or produced by means of a technical process even if it previously occurred in nature;

  • b) without prejudice to Rule 28, paragraph 2, plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety;

  • c) a microbiological or other technical process, or a product obtained by means of such a process other than a plant or animal variety.

Rule 28. Exceptions to patentability

  • (1) Under Article 53(a), European patents shall not be granted in respect of biotechnological inventions which, in particular, concern the following:

    • (a) processes for cloning human beings;

    • (b) processes for modifying the germ line genetic identity of human beings;

    • (c) uses of human embryos for industrial or commercial purposes;

    • (d) processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes.

  • (2) Under Article 53(b), European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process.

Rule 29. The human body and its elements

  • 1 The human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions.

  • 2 An element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention, even if the structure of that element is identical to that of a natural element.

  • 3 The industrial application of a sequence or a partial sequence of a gene must be disclosed in the patent application.

Rule 30. Requirements of European patent applications relating to nucleotide and amino acid sequences

  • 1 If nucleotide or amino acid sequences are disclosed in the European patent application, the description shall contain a sequence listing conforming to the rules laid down by the President of the European Patent Office for the standardised representation of nucleotide and amino acid sequences.

  • 2 A sequence listing filed after the date of filing shall not form part of the description.

  • 3 Where the applicant has not filed a sequence listing complying with the requirements under paragraph 1 at the date of filing, the European Patent Office shall invite the applicant to furnish such a sequence listing and pay the late furnishing fee. If the applicant does not furnish the required sequence listing and pay the required late furnishing fee within a period of two months after such an invitation, the application shall be refused.

Rule 31. Deposit of biological material

  • 1 If an invention involves the use of or concerns biological material which is not available to the public and which cannot be described in the European patent application in such a manner as to enable the invention to be carried out by a person skilled in the art, the invention shall only be regarded as being disclosed as prescribed in Article 83 if:

    • a) a sample of the biological material has been deposited with a recognised depositary institution on the same terms as those laid down in the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure of 28 April 1977 not later than the date of filing of the application;

    • b) the application as filed gives such relevant information as is available to the applicant on the characteristics of the biological material;

    • c) the depositary institution and the accession number of the deposited biological material are stated in the application, and

    • d) where the biological material has been deposited by a person other than the applicant, the name and address of the depositor are stated in the application and a document is submitted to the European Patent Office providing evidence that the depositor has authorised the applicant to refer to the deposited biological material in the application and has given his unreserved and irrevocable consent to the deposited material being made available to the public in accordance with Rule 33.

  • 2 The information referred to in paragraph 1(c) and (d) may be submitted

    • a) within sixteen months after the date of filing of the application or, if priority has been claimed, after the priority date, this period being deemed to have been observed if the information is communicated before completion of the technical preparations for publication of the European patent application;

    • b) up to the date of submission of a request under Article 93, paragraph 1(b);

    • c) within one month after the European Patent Office has communicated to the applicant that the right to inspect the files under Article 128, paragraph 2, exists.

    The ruling period shall be the one which is the first to expire. The communication of this information shall be considered as constituting the unreserved and irrevocable consent of the applicant to the deposited biological material being made available to the public in accordance with Rule 33.

Rule 32. Expert solution

  • 1 Until completion of the technical preparations for publication of the European patent application, the applicant may inform the European Patent Office that,

    • a) until the publication of the mention of the grant of the European patent or, where applicable,

    • b) for twenty years from the date of filing, if the application is refused or withdrawn or deemed to be withdrawn,

    the availability referred to in Rule 33 shall be effected only by the issue of a sample to an independent expert nominated by the requester.

  • 2 Any natural person may be nominated as an expert, provided that he complies with the requirements and obligations laid down by the President of the European Patent Office.

    The nomination shall be accompanied by a declaration from the expert that he undertakes to comply with the aforementioned requirements and obligations and that he knows of no circumstances which might give rise to justified doubts as to his independence or which might conflict in any other way with his function as expert.

    The nomination shall also be accompanied by a declaration from the expert vis-à-vis the applicant in which he enters into the undertaking given under Rule 33 until either the date on which the patent expires in all the designated States or, where the application is refused, withdrawn or deemed to be withdrawn, the date referred to in paragraph 1(b), the requester being regarded as a third party.

Rule 33. Availability of biological material

  • 1 Biological material deposited in accordance with Rule 31 shall be available upon request to any person from the date of publication of the European patent application and to any person having the right to inspect the files under Article 128, paragraph 2, prior to that date. Subject to Rule 32, such availability shall be effected by the issue of a sample of the biological material to the person making the request (hereinafter referred to as “the requester”).

  • 2 Said issue shall be made only if the requester has undertaken vis-à-vis the applicant for or proprietor of the patent not to make the biological material or any biological material derived therefrom available to any third party and to use that material for experimental purposes only, until such time as the patent application is refused or withdrawn or deemed to be withdrawn, or before the European patent has expired in all the designated States, unless the applicant for or proprietor of the patent expressly waives such an undertaking.

    The undertaking to use the biological material for experimental purposes only shall not apply in so far as the requester is using that material under a compulsory licence. The term “compulsory licence” shall be construed as including ex officio licences and the right to use patented inventions in the public interest.

  • 3 For the purposes of paragraph 2, derived biological material shall mean any material which still exhibits those characteristics of the deposited material which are essential to carrying out the invention. The undertaking under paragraph 2 shall not impede any deposit of derived biological material necessary for the purpose of patent procedure.

  • 4 The request referred to in paragraph 1 shall be submitted to the European Patent Office on a form recognised by that Office. The European Patent Office shall certify on the form that a European patent application referring to the deposit of the biological material has been filed, and that the requester or the expert nominated by him under Rule 32 is entitled to the issue of a sample of that material. After grant of the European patent, the request shall also be submitted to the European Patent Office.

  • 5 The European Patent Office shall transmit a copy of the request, with the certification provided for in paragraph 4, to the depositary institution and to the applicant for or the proprietor of the patent.

  • 6 The European Patent Office shall publish in its Official Journal the list of depositary institutions recognised for the purpose of Rules 31, 33 and 34.

Rule 34. New deposit of biological material

If biological material deposited in accordance with Rule 31 ceases to be available from the recognised depositary institution, an interruption in availability shall be deemed not to have occurred if a new deposit of that material is made with a recognised depositary institution on the same terms as those laid down in the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure of 28 April 1977, and if a copy of the receipt of the new deposit issued by the depositary institution is forwarded to the European Patent Office within four months of the date of the new deposit, stating the number of the European patent application or of the European patent.

PART III. IMPLEMENTING REGULATIONS TO PART III OF THE CONVENTION

CHAPTER I. FILING OF THE EUROPEAN PATENT APPLICATION

Rule 35. General provisions

  • 1 European patent applications may be filed in writing with the European Patent Office in Munich, The Hague or Berlin, or the authorities referred to in Article 75, paragraph 1(b).

  • 2 The authority with which the European patent application is filed shall mark the documents making up the application with the date of their receipt, and issue without delay a receipt to the applicant including at least the application number and the nature, number and date of receipt of the documents.

  • 3 If the European patent application is filed with an authority referred to in Article 75, paragraph 1(b), such authority shall without delay inform the European Patent Office of the receipt of the application, and, in particular, of the nature and date of receipt of the documents, the application number and any priority date claimed.

  • 4 Upon receipt of a European patent application forwarded by the central industrial property office of a Contracting State, the European Patent Office shall inform the applicant accordingly, indicating the date of its receipt.

Rule 36. European divisional applications

  • 1 The applicant may file a divisional application relating to any pending earlier European patent application.

  • 2 A divisional application shall be filed in the language of the proceedings for the earlier application. If the latter was not in an official language of the European Patent Office, the divisional application may be filed in the language of the earlier application; a translation into the language of the proceedings for the earlier application shall then be filed within two months of the filing of the divisional application. The divisional application shall be filed with the European Patent Office in Munich, The Hague or Berlin.

  • 3 The filing fee and search fee shall be paid within one month of filing the divisional application. If the filing fee or search fee is not paid in due time, the application shall be deemed to be withdrawn.

  • 4 The designation fee shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report drawn up in respect of the divisional application. Rule 39, paragraphs 2 and 3, shall apply.

Rule 37. Forwarding of European patent applications

  • 1 The central industrial property office of a Contracting State shall forward European patent applications to the European Patent Office in the shortest time compatible with its national law relating to the secrecy of inventions in the interests of the State, and shall take all appropriate steps to ensure such forwarding within:

    • a) six weeks of filing, where the subject of the application is evidently not liable to secrecy under the national law; or

    • b) four months of filing or, if priority has been claimed, fourteen months of the date of priority, where the application requires further examination as to its liability to secrecy.

  • 2 A European patent application not received by the European Patent Office within fourteen months of filing or, if priority has been claimed, of the date of priority, shall be deemed to be withdrawn. Any fees paid in respect of this application shall be refunded.

Rule 38. Filing fee and search fee

  • 1 The filing fee and search fee shall be paid within one month of filing the European patent application.

  • 2 The Rules relating to Fees may provide for an additional fee as part of the filing fee if the application comprises more than 35 pages.

  • 3 The additional fee referred to in paragraph 2 shall be paid within one month of filing the European patent application or one month of filing the first set of claims or one month of filing the certified copy referred to in Rule 40, paragraph 3, whichever period expires last.

  • 4 The Rules relating to Fees may provide for an additional fee as part of the filing fee in the case of a divisional application filed in respect of any earlier application which is itself a divisional application.

Rule 39. Designation fees

  • 1 The designation fee shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report.

  • 2 Where the designation fee is not paid in due time or the designations of all the Contracting States are withdrawn, the European patent application shall be deemed to be withdrawn.

  • 3 Without prejudice to Rule 37, paragraph 2, second sentence, the designation fee shall not be refunded.

Rule 40. Date of filing

  • 1 The date of filing of a European patent application shall be the date on which the documents filed by the applicant contain:

    • a) an indication that a European patent is sought;

    • b) information identifying the applicant or allowing the applicant to be contacted; and

    • c) a description or reference to a previously filed application.

  • 2 A reference to a previously filed application under paragraph 1(c) shall state the filing date and number of that application and the Office with which it was filed. Such reference shall indicate that it replaces the description and any drawings.

  • 3 Where the application contains a reference under paragraph 2, a certified copy of the previously filed application shall be filed within two months of filing the application. Where the previously filed application is not in an official language of the European Patent Office, a translation thereof in one of these languages shall be filed within the same period. Rule 53, paragraph 2, shall apply mutatis mutandis.

CHAPTER II. PROVISIONS GOVERNING THE APPLICATION

Rule 41. Request for grant

  • 1 The request for grant of a European patent shall be filed on a form drawn up by the European Patent Office.

  • 2 The request shall contain:

    • a) a petition for the grant of a European patent;

    • b) the title of the invention, which shall clearly and concisely state the technical designation of the invention and shall exclude all fancy names;

    • c) the name, address and nationality of the applicant and the State in which his residence or principal place of business is located. Names of natural persons shall be indicated by the person’s family name, followed by his given names. Names of legal persons, as well as of bodies equivalent to legal persons under the law governing them, shall be indicated by their official designations. Addresses shall be indicated in accordance with applicable customary requirements for prompt postal delivery and shall comprise all the relevant administrative units, including the house number, if any. It is recommended that the fax and telephone numbers be indicated;

    • d) if the applicant has appointed a representative, his name and the address of his place of business as prescribed in subparagraph (c);

    • e) where appropriate, an indication that the application constitutes a divisional application and the number of the earlier European patent application;

    • f) in cases covered by Article 61, paragraph 1(b), the number of the original European patent application;

    • g) where applicable, a declaration claiming the priority of an earlier application and indicating the date on which and the country in or for which the earlier application was filed;

    • h) the signature of the applicant or his representative;

    • i) a list of the documents accompanying the request. This list shall also indicate the number of sheets of the description, claims, drawings and abstract filed with the request;

    • j) the designation of the inventor, where the applicant is the inventor.

  • 3 If there is more than one applicant, the request shall preferably contain the appointment of one applicant or representative as common representative.

Rule 42. Content of the description

  • 1 The description shall:

    • a) specify the technical field to which the invention relates;

    • b) indicate the background art which, as far as is known to the applicant, can be regarded as useful to understand the invention, draw up the European search report and examine the European patent application, and, preferably, cite the documents reflecting such art;

    • c) disclose the invention, as claimed, in such terms that the technical problem, even if not expressly stated as such, and its solution can be understood, and state any advantageous effects of the invention with reference to the background art;

    • d) briefly describe the figures in the drawings, if any;

    • e) describe in detail at least one way of carrying out the invention claimed, using examples where appropriate and referring to the drawings, if any;

    • f) indicate explicitly, when it is not obvious from the description or nature of the invention, the way in which the invention is industrially applicable.

  • 2 The description shall be presented in the manner and order specified in paragraph 1, unless, owing to the nature of the invention, a different presentation would afford a better understanding or be more concise.

Rule 43. Form and content of claims

  • 1 The claims shall define the matter for which protection is sought in terms of the technical features of the invention. Wherever appropriate, claims shall contain:

    • a) a statement indicating the designation of the subject-matter of the invention and those technical features which are necessary for the definition of the claimed subject-matter but which, in combination, form part of the prior art;

    • b) a characterising portion, beginning with the expression “characterised in that” or “characterised by” and specifying the technical features for which, in combination with the features stated under subparagraph (a), protection is sought.

  • 2 Without prejudice to Article 82, a European patent application may contain more than one independent claim in the same category (product, process, apparatus or use) only if the subject-matter of the application involves one of the following:

    • a) a plurality of interrelated products,

    • b) different uses of a product or apparatus,

    • c) alternative solutions to a particular problem, where it is inappropriate to cover these alternatives by a single claim.

  • 3 Any claim stating the essential features of an invention may be followed by one or more claims concerning particular embodiments of that invention.

  • 4 Any claim which includes all the features of any other claim (dependent claim) shall contain, if possible at the beginning, a reference to the other claim and then state the additional features. A dependent claim directly referring to another dependent claim shall also be admissible. All dependent claims referring back to a single previous claim, and all dependent claims referring back to several previous claims, shall be grouped together to the extent and in the most appropriate way possible.

  • 5 The number of claims shall be reasonable with regard to the nature of the invention claimed. The claims shall be numbered consecutively in Arabic numerals.

  • 6 Except where absolutely necessary, claims shall not rely on references to the description or drawings in specifying the technical features of the invention. In particular, they shall not contain such expressions as “as described in part … of the description”, or “as illustrated in figure … of the drawings”.

  • 7 Where the European patent application contains drawings including reference signs, the technical features specified in the claims shall preferably be followed by such reference signs relating to these features, placed in parentheses, if the intelligibility of the claim can thereby be increased. These reference signs shall not be construed as limiting the claim.

Rule 44. Unity of invention

  • 1 Where a group of inventions is claimed in a European patent application, the requirement of unity of invention under Article 82 shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those features which define a contribution which each of the claimed inventions considered as a whole makes over the prior art.

  • 2 The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim.

Rule 45. Claims incurring fees

  • 1 Any European patent application comprising more than fifteen claims shall, in respect of the sixteenth and each subsequent claim, incur payment of claims fees as laid down in the Rules relating to Fees.

  • 2 The claims fees shall be paid within one month of filing the first set of claims. If the claims fees have not been paid in due time, they may still be paid within one month of a communication concerning the failure to observe the time limit.

  • 3 If a claims fee is not paid in due time, the claim concerned shall be deemed to be abandoned.

Rule 46. Form of the drawings

  • 1 On sheets containing drawings, the usable surface area shall not exceed 26.2 cm x 17 cm. The usable or used surface shall not be surrounded by frames. The minimum margins shall be as follows:

    top

    2.5 cm

    left side

    2.5 cm

    right side

    1.5 cm

    bottom

    1 cm

  • 2 Drawings shall be executed as follows:

    • a) Drawings shall be executed without colourings in durable, black, sufficiently dense and dark, uniformly thick and well-defined lines and strokes.

    • b) Cross-sections shall be indicated by hatching which should not impede the clear reading of the reference signs and leading lines.

    • c) The scale of the drawings and their graphical execution shall be such that electronic or photographic reproduction with a linear reduction in size to two-thirds will allow all details to be distinguished without difficulty. If, exceptionally, the scale is given on a drawing, it shall be represented graphically.

    • d) All numbers, letters, and reference signs appearing on the drawings shall be simple and clear. Brackets, circles or inverted commas shall not be used in association with numbers and letters.

    • e) Generally, all lines in the drawings shall be drawn with the aid of drafting instruments.

    • f) Elements of the same figure shall be proportional to one another, unless a difference in proportion is indispensable for the clarity of the figure.

    • g) The height of the numbers and letters shall not be less than 0.32 cm. For the lettering of drawings, the Latin and, where customary, the Greek alphabets shall be used.

    • h) The same sheet of drawings may contain several figures. Where figures drawn on two or more sheets are intended to form a single figure, the figures on the several sheets shall be so arranged that the whole figure can be assembled without concealing any part of the partial figures. The different figures shall be arranged without wasting space, preferably in an upright position, clearly separated from one another. Where the figures are not arranged in an upright position, they shall be presented sideways with the top of the figures at the left side of the sheet. The different figures shall be numbered consecutively in Arabic numerals, independently of the numbering of the sheets.

    • i) Reference signs not mentioned in the description and claims shall not appear in the drawings, and vice versa. Reference signs to features shall be consistent throughout the application.

    • j) The drawings shall not contain text matter. Where indispensable to understand the drawings, a few short keywords, such as “water”, “steam”, “open”, “closed” or “section on AB”, may be included. Any such keywords shall be placed in such a way that, if required, they can be replaced by their translations without interfering with any lines of the drawings.

  • 3 Flow sheets and diagrams shall be deemed to be drawings.

Rule 47. Form and content of the abstract

  • 1 The abstract shall indicate the title of the invention.

  • 2 The abstract shall contain a concise summary of the disclosure as contained in the description, the claims and any drawings. The summary shall indicate the technical field to which the invention pertains, and shall be drafted in a manner allowing the clear understanding of the technical problem, the gist of the solution of that problem through the invention, and the principal use or uses of the invention. The abstract shall, where applicable, contain the chemical formula which, among those contained in the application, best characterises the invention. It shall not contain statements on the alleged merits or value of the invention or on speculative applications thereof.

  • 3 The abstract shall preferably not contain more than one hundred and fifty words.

  • 4 If the European patent application contains drawings, the applicant shall indicate the figure or, exceptionally, the figures of the drawings which should be published with the abstract. The European Patent Office may decide to publish one or more other figures if it considers that they better characterise the invention. Each essential feature mentioned in the abstract and illustrated by a drawing shall be followed by a reference sign placed in parentheses.

  • 5 The abstract shall be drafted in such a manner as to constitute an efficient instrument for the purpose of searching in the particular technical field. In particular, it shall make it possible to assess whether consultation of the European patent application itself is necessary.

Rule 48. Prohibited matter

  • 1 The European patent application shall not contain:

    • a) statements or other matter contrary to “ordre public” or morality;

    • b) statements disparaging the products or processes of any third party or the merits or validity of the applications or patents of any such party. Mere comparisons with the prior art shall not be considered disparaging per se;

    • c) any statement or other matter obviously irrelevant or unnecessary under the circumstances.

  • 2 If the application contains matter prohibited under paragraph 1(a), the European Patent Office may omit such matter from the application as published, indicating the place and number of words or drawings omitted.

  • 3 If the application contains statements referred to in paragraph 1(b), the European Patent Office may omit them from the application as published, indicating the place and number of words omitted. Upon request, the European Patent Office shall furnish a copy of the passages omitted.

Rule 49. General provisions governing the presentation of the application documents

  • 2 The documents making up the application shall be presented so as to allow electronic and direct reproduction, in particular by scanning, photography, electrostatic processes, photo offset and microfilming, in an unlimited number of copies. All sheets shall be free from cracks, creases and folds. Only one side of the sheet shall be used.

  • 3 The documents making up the application shall be on A4 paper (29.7 cm x 21 cm) which shall be pliable, strong, white, smooth, matt and durable. Subject to paragraph 9 and Rule 46, paragraph 2(h), each sheet shall be used with its short sides at the top and bottom (upright position).

  • 4 Each of the documents making up the application (request, description, claims, drawings and abstract) shall commence on a new sheet. The sheets shall be connected in such a way that they can easily be turned over, separated and joined together again.

  • 5 Subject to Rule 46, paragraph 1, the minimum margins shall be as follows:

    top:

    2 cm

    left side:

    2.5 cm

    right side:

    2 cm

    bottom:

    2 cm

    The recommended maximum for the margins quoted above is as follows:

    top:

    4 cm

    left side:

    4 cm

    right side:

    3 cm

    bottom:

    3 cm

  • 6 All the sheets contained in the application shall be numbered in consecutive Arabic numerals. These shall be centred at the top of the sheet, but not placed in the top margin.

  • 7 The lines of each sheet of the description and of the claims shall preferably be numbered in sets of five, the numbers appearing on the left side, to the right of the margin.

  • 8 The request for grant of a European patent, the description, the claims and the abstract shall be typed or printed. Only graphic symbols and characters and chemical or mathematical formulae may, if necessary, be drawn or written by hand. The typing shall be 1½ spaced. All text matter shall be in characters, the capital letters of which are not less than 0.21 cm high, and shall be in a dark, indelible colour.

  • 9 The request for grant of a European patent, the description, the claims and the abstract shall not contain drawings. The description, claims and abstract may contain chemical or mathematical formulae. The description and abstract may contain tables. The claims may contain tables only if their subject-matter makes the use of tables desirable. Tables and chemical or mathematical formulae may be placed sideways on the sheet if they cannot be presented satisfactorily in an upright position. Tables or chemical or mathematical formulae presented sideways shall be placed so that the tops of the tables or formulae are at the left-hand side of the sheet.

  • 10 Values shall be expressed in units conforming to international standards, wherever appropriate in terms of the metric system using SI units. Any data not meeting this requirement shall also be expressed in units conforming to international standards. Only the technical terms, formulae, signs and symbols generally accepted in the field in question shall be used.

  • 11 The terminology and the signs shall be consistent throughout the European patent application.

  • 12 Each sheet shall be reasonably free from erasures and shall be free from alterations. Non-compliance with this rule may be authorised if the authenticity of the content is not impugned and the requirements for good reproduction are not thereby jeopardised.

Rule 50. Documents filed subsequently

  • 2 All documents other than those making up the application shall generally be typewritten or printed. There shall be a margin of about 2.5 cm on the left-hand side of each page.

  • 3 Documents filed after filing the application shall be signed, with the exception of annexed documents. If a document has not been signed, the European Patent Office shall invite the party concerned to do so within a time limit to be specified. If signed in due time, the document shall retain its original date of receipt; otherwise it shall be deemed not to have been filed.

CHAPTER III. RENEWAL FEES

Rule 51. Payment of renewal fees

  • 1 A renewal fee for the European patent application in respect of the coming year shall be due on the last day of the month containing the anniversary of the date of filing of the European patent application. Renewal fees may not be validly paid more than three months before they fall due.

  • 2 If a renewal fee is not paid on the due date under paragraph 1, the fee may still be paid within six months of the said date, provided that an additional fee is also paid within that period. The legal consequence laid down in Article 86, paragraph 1, shall ensue upon expiry of the six-month period.

  • 3 Renewal fees already due in respect of an earlier application at the date on which a divisional application is filed shall also be paid for the divisional application and shall be due on its filing. These fees and any renewal fee due within four months of filing the divisional application may be paid within that period without an additional fee. Paragraph 2 shall apply.

  • 4 If a European patent application has been refused or deemed to be withdrawn as a result of non-observance of a time limit, and if the applicant’s rights are re-established under Article 122, a renewal fee

    • a) which would have fallen due under paragraph 1 in the period starting on the date on which the loss of rights occurred, up to and including the date of the notification of the decision re-establishing the rights shall be due on that latter date.

      This fee and any renewal fee due within four months from that latter date may still be paid within four months of that latter date without an additional fee. Paragraph 2 shall apply.

    • b) which, on the date on which the loss of rights has occurred, was already due but the period provided for in paragraph 2 has not yet expired, may still be paid within six months from the date of the notification of the decision re-establishing the rights, provided that the additional fee pursuant to paragraph 2 is also paid within that period.

  • 5 If the Enlarged Board of Appeal re-opens proceedings before the Board of Appeal under Article 112a, paragraph 5, second sentence, a renewal fee

    • a) which would have fallen due under paragraph 1 in the period starting on the date when the decision of the Board of Appeal subject to the petition for review was taken, up to and including the date of the notification of the decision of the Enlarged Board of Appeal re-opening proceedings before the Board of Appeal, shall be due on that latter date. This fee and any renewal fee due within four months from that latter date may still be paid within four months of that latter date without an additional fee. Paragraph 2 shall apply.

    • b) which, on the day on which the decision of the Board of Appeal was taken, was already due but the period provided for in paragraph 2 has not yet expired, may still be paid within six months from the date of the notification of the decision of the Enlarged Board of Appeal re-opening proceedings before the Board of Appeal, provided that the additional fee pursuant to paragraph 2 is also paid within that period.

  • 6 A renewal fee shall not be payable for a new European patent application filed under Article 61, paragraph 1(b), in respect of the year in which it was filed and any preceding year.

CHAPTER IV. PRIORITY

Rule 52. Declaration of priority

  • 1 The declaration of priority referred to in Article 88, paragraph 1, shall indicate the date of the previous filing, the State party to the Paris Convention or Member of the World Trade Organization in or for which it was made and the file number. In the case referred to in Article 87, paragraph 5, the first sentence shall apply mutatis mutandis.

  • 2 The declaration of priority shall preferably be made on filing the European patent application. It may still be made within sixteen months from the earliest priority date claimed.

  • 3 The applicant may correct the declaration of priority within sixteen months from the earliest priority date claimed, or, where the correction would cause a change in the earliest priority date claimed, within sixteen months from the corrected earliest priority date, whichever sixteen-month period expires first, provided that such a correction may be submitted until the expiry of four months from the date of filing accorded to the European patent application.

  • 4 However, a declaration of priority may not be made or corrected after a request under Article 93, paragraph 1(b), has been filed.

  • 5 The particulars of the declaration of priority shall appear in the published European patent application and the European patent specification.

Rule 53. Priority documents

  • 1 An applicant claiming priority shall file a copy of the previous application within sixteen months of the earliest priority date claimed. This copy and the date of filing of the previous application shall be certified as correct by the authority with which that application was filed.

  • 2 The copy of the previous application shall be deemed to be duly filed if a copy of that application available to the European Patent Office is to be included in the file of the European patent application under the conditions determined by the President of the European Patent Office.

  • 3 Where the previous application is not in an official language of the European Patent Office and the validity of the priority claim is relevant to the determination of the patentability of the invention concerned, the European Patent Office shall invite the applicant for or proprietor of the European patent to file a translation of that application into one of the official languages within a period to be specified. Alternatively, a declaration may be submitted that the European patent application is a complete translation of the previous application. Paragraph 2 shall apply mutatis mutandis. If a requested translation of a previous application is not filed in due time, the right of priority for the European patent application or for the European patent with respect to that application shall be lost. The applicant for or proprietor of the European patent shall be informed accordingly.

Rule 54. Issuing priority documents

On request, the European Patent Office shall issue to the applicant a certified copy of the European patent application (priority document), under the conditions determined by the President of the European Patent Office, including the form of the priority document and the circumstances under which an administrative fee shall be paid.

PART IV. IMPLEMENTING REGULATIONS TO PART IV OF THE CONVENTION

CHAPTER I. EXAMINATION BY THE RECEIVING SECTION

Rule 55. Examination on filing

If the examination under Article 90, paragraph 1, reveals that the application fails to meet the requirements laid down in Rule 40, paragraph 1(a) or (c), paragraph 2 or paragraph 3, first sentence, the European Patent Office shall inform the applicant of any deficiencies and advise him that the application will not be dealt with as a European patent application unless such deficiencies are remedied within two months. If the applicant does this, he shall be informed of the date of filing accorded by the Office.

Rule 56. Missing parts of the description or missing drawings

  • 1 If the examination under Article 90, paragraph 1, reveals that parts of the description, or drawings referred to in the description or in the claims, appear to be missing, the European Patent Office shall invite the applicant to file the missing parts within two months. The applicant may not invoke the omission of such a communication.

  • 2 If missing parts of the description or missing drawings are filed later than the date of filing, but within two months of the date of filing or, if a communication is issued under paragraph 1, within two months of that communication, the application shall be re-dated to the date on which the missing parts of the description or missing drawings were filed. The European Patent Office shall inform the applicant accordingly.

  • 3 If the missing parts of the description or missing drawings are filed within the period under paragraph 2, and the application claims priority of an earlier application, the date of filing shall, provided that the missing parts of the description or the missing drawings are completely contained in the earlier application, remain the date on which the requirements laid down in Rule 40, paragraph 1, were fulfilled, where the applicant so requests and files, within the period under paragraph 2:

    • a) a copy of the earlier application, unless such copy is available to the European Patent Office under Rule 53, paragraph 2;

    • b) where the earlier application is not in an official language of the European Patent Office, a translation thereof in one of these languages, unless such copy is available to the European Patent Office under Rule 53, paragraph 3; and

    • c) an indication as to where the missing parts of the description or the missing drawings are completely contained in the earlier application and, where applicable, in the translation thereof.

  • 4 If the applicant:

    • a) fails to file the missing parts of the description or the missing drawings within the period under paragraph 1 or 2, or

    • b) withdraws under paragraph 6 any missing part of the description or missing drawing filed under paragraph 2, any references referred to in paragraph 1 shall be deemed to be deleted, and any filing of the missing parts of the description or missing drawings shall be deemed not to have been made. The European Patent Office shall inform the applicant accordingly.

  • 5 If the applicant fails to comply with the requirements referred to in paragraph 3(a) to (c) within the period under paragraph 2, the application shall be re-dated to the date on which the missing parts of the description or missing drawings were filed. The European Patent Office shall inform the applicant accordingly.

  • 6 Within one month of the notification referred to in paragraph 2 or 5, last sentence, the applicant may withdraw the missing parts of the description or the missing drawings filed, in which case the re-dating shall be deemed not to have been made. The European Patent Office shall inform the applicant accordingly.

Rule 57. Examination as to formal requirements

If the European patent application has been accorded a date of filing, the European Patent Office shall examine, in accordance with Article 90, paragraph 3, whether:

Rule 58. Correction of deficiencies in the application documents

If the European patent application does not comply with the requirements of Rule 57(a) to (d), (h) and (i), the European Patent Office shall inform the applicant accordingly and invite him to correct the deficiencies noted within two months. The description, claims and drawings may be amended only to an extent sufficient to remedy such deficiencies.

Rule 59. Deficiencies in claiming priority

If the file number of the previous application under Rule 52, paragraph 1, or the copy of that application under Rule 53, paragraph 1, have not been filed in due time, the European Patent Office shall inform the applicant accordingly and invite him to file them within a period to be specified.

Rule 60. Subsequent designation of the inventor

  • 1 If the designation of the inventor has not been made in accordance with Rule 19, the European Patent Office shall inform the applicant that the European patent application will be refused unless the designation is made within sixteen months of the date of filing of the application or, if priority is claimed, of the date of priority, this period being deemed to have been observed if the information is communicated before completion of the technical preparations for the publication of the European patent application.

  • 2 Where, in a divisional application or a new application under Article 61, paragraph 1(b), the designation of the inventor has not been made in accordance with Rule 19, the European Patent Office shall invite the applicant to make the designation within a period to be specified.

CHAPTER II. EUROPEAN SEARCH REPORT

Rule 61. Content of the European search report

  • 1 The European search report shall mention those documents, available to the European Patent Office at the time of drawing up the report, which may be taken into consideration in deciding whether the invention to which the European patent application relates is new and involves an inventive step.

  • 2 Each citation shall be referred to the claims to which it relates. Where appropriate, relevant parts of the documents cited shall be identified.

  • 3 The European search report shall distinguish between cited documents published before the date of priority claimed, between such date of priority and the date of filing, and on or after the date of filing.

  • 4 Any document which refers to an oral disclosure, a use or any other means of disclosure which took place before the date of filing of the European patent application shall be mentioned in the European search report, together with an indication of the date of publication, if any, of the document and the date of the non-written disclosure.

  • 5 The European search report shall be drawn up in the language of the proceedings.

  • 6 The European search report shall contain the classification of the subject-matter of the European patent application in accordance with the international classification.

Rule 62. Extended European search report

  • 1 The European search report shall be accompanied by an opinion on whether the application and the invention to which it relates seem to meet the requirements of this Convention, unless a communication under Rule 71, paragraph 1 or 3, can be issued.

  • 2 The opinion under paragraph 1 shall not be published together with the search report.

Rule 62a. Applications containing a plurality of independent claims

  • 1 If the European Patent Office considers that the claims as filed do not comply with Rule 43, paragraph 2, it shall invite the applicant to indicate, within a period of two months, the claims complying with Rule 43, paragraph 2, on the basis of which the search is to be carried out. If the applicant fails to provide such an indication in due time, the search shall be carried out on the basis of the first claim in each category.

  • 2 The Examining Division shall invite the applicant to restrict the claims to the subject-matter searched unless it finds that the objection under paragraph 1 was not justified.

Rule 63. Incomplete search

  • 1 If the European Patent Office considers that the European patent application fails to such an extent to comply with this Convention that it is impossible to carry out a meaningful search regarding the state of the art on the basis of all or some of the subject-matter claimed, it shall invite the applicant to file, within a period of two months, a statement indicating the subject-matter to be searched.

  • 2 If the statement under paragraph 1 is not filed in due time, or if it is not sufficient to overcome the deficiency noted under paragraph 1, the European Patent Office shall either issue a reasoned declaration stating that the European patent application fails to such an extent to comply with this Convention that it is impossible to carry out a meaningful search regarding the state of the art on the basis of all or some of the subject-matter claimed or, as far as is practicable, draw up a partial search report. The reasoned declaration or the partial search report shall be considered, for the purposes of subsequent proceedings, as the European search report.

  • 3 When a partial search report has been drawn up, the Examining Division shall invite the applicant to restrict the claims to the subject-matter searched unless it finds that the objection under paragraph 1 was not justified.

Rule 64. European search report where the invention lacks unity

  • 1 If the European Patent Office considers that the European patent application does not comply with the requirement of unity of invention, it shall draw up a partial search report on those parts of the application which relate to the invention, or the group of inventions within the meaning of Article 82, first mentioned in the claims. It shall inform the applicant that, for the European search report to cover the other inventions, a further search fee must be paid, in respect of each invention involved, within a period of two months. The European search report shall be drawn up for the parts of the application relating to inventions in respect of which search fees have been paid.

  • 2 Any fee paid under paragraph 1 shall be refunded if, during the examination of the European patent application, the applicant requests a refund and the Examining Division finds that the communication under paragraph 1 was not justified.

Rule 65. Transmittal of the European search report

Immediately after it has been drawn up, the European search report shall be transmitted to the applicant together with copies of any cited documents.

Rule 66. Definitive content of the abstract

Upon drawing up the European search report, the European Patent Office shall determine the definitive content of the abstract and transmit it to the applicant together with the search report.

CHAPTER III. PUBLICATION OF THE EUROPEAN PATENT APPLICATION

Rule 67. Technical preparations for publication

  • 1 The President of the European Patent Office shall determine when the technical preparations for publication of the European patent application are deemed to have been completed.

  • 2 The application shall not be published if it has been finally refused or withdrawn or is deemed to be withdrawn before the termination of the technical preparations for publication.

Rule 68. Form of the publication of European patent applications and European search reports

  • 1 The publication of the European patent application shall contain the description, the claims and any drawings as filed, and the abstract, or, if these documents making up the application were not filed in an official language of the European Patent Office, a translation in the language of the proceedings, and, in an annex, the European search report, where it is available before the termination of the technical preparations for publication. If the search report or the abstract is not published at the same time as the application, it shall be published separately.

  • 2 The President of the European Patent Office shall determine the form of the publication of the application and the data to be included. The same shall apply where the European search report and the abstract are published separately.

  • 3 The designated Contracting States shall be indicated in the published application.

  • 4 If the claims were not filed on the date of filing of the application, this shall be indicated when the application is published. If, before the termination of the technical preparations for publication of the application, the claims have been amended under Rule 137, paragraph 2, the new or amended claims shall be included in the publication in addition to the claims as filed.

Rule 69. Information about publication

  • 2 If a date of publication is specified in the communication under paragraph 1 which is later than the actual date of publication, that later date shall be the decisive date as regards the periods referred to in Rule 70, paragraph 1, and Rule 70a, paragraph 1, unless the error is obvious.

Rule 70. Request for examination

  • 1 The applicant may request examination of the European patent application up to six months after the date on which the European Patent Bulletin mentions the publication of the European search report. The request may not be withdrawn.

  • 2 If the request for examination has been filed before the European search report has been transmitted to the applicant, the European Patent Office shall invite the applicant to indicate, within a period to be specified, whether he wishes to proceed further with the application, and shall give him the opportunity to comment on the search report and to amend, where appropriate, the description, claims and drawings.

  • 3 If the applicant fails to reply in due time to the invitation under paragraph 2, the application shall be deemed to be withdrawn.

CHAPTER IV. EXAMINATION BY THE EXAMINING DIVISION

Rule 70a. Response to the extended European search report

  • 1 In the opinion accompanying the European search report the European Patent Office shall give the applicant the opportunity to comment on the extended European search report and, where appropriate, invite him to correct any deficiencies noted in the opinion accompanying the European search report and to amend the description, claims and drawings within the period referred to in Rule 70, paragraph 1.

  • 2 In the case referred to in Rule 70, paragraph 2, or if a supplementary European search report is drawn up on a Euro-PCT-application, the European Patent Office shall give the applicant the opportunity to comment on the extended European search report and, where appropriate, invite him to correct any deficiencies noted in the opinion accompanying the European search report and to amend the description, claims and drawings within the period specified for indicating whether he wishes to proceed further with the application.

  • 3 If the applicant neither complies with nor comments on an invitation in accordance with paragraph 1 or 2, the application shall be deemed to be withdrawn.

Rule 70b. Request for a copy of search results

  • 1 Where the European Patent Office notes, at the time the Examining Division assumes responsibility, that a copy referred to in Rule 141, paragraph 1, has not been filed by the applicant and is not deemed to be duly filed under Rule 141, paragraph 2, it shall invite the applicant to file, within a period of two months, the copy or a statement that the results of the search referred to in Rule 141, paragraph 1, are not available to him.

  • 2 If the applicant fails to reply in due time to the invitation under paragraph 1, the European patent application shall be deemed to be withdrawn.

Rule 71. Examination procedure

  • 1 In any communication under Article 94, paragraph 3, the Examining Division shall, where appropriate, invite the applicant to correct any deficiencies noted and to amend the description, claims and drawings within a period to be specified.

  • 2 Any communication under Article 94, paragraph 3, shall contain a reasoned statement covering, where appropriate, all the grounds against the grant of the European patent.

  • 3 Before the Examining Division decides to grant the European patent, it shall inform the applicant of the text in which it intends to grant it and of the related bibliographic data. In this communication the Examining Division shall invite the applicant to pay the fee for grant and publishing and to file a translation of the claims in the two official languages of the European Patent Office other than the language of the proceedings within four months.

  • 4 If the European patent application in the text intended for grant comprises more than fifteen claims, the Examining Division shall invite the applicant to pay claims fees in respect of the sixteenth and each subsequent claim within the period under paragraph 3 unless the said fees have already been paid under Rule 45 or Rule 162.

  • 5 If the applicant, within the period laid down in paragraph 3, pays the fees under paragraph 3 and, where applicable, paragraph 4 and files the translations under paragraph 3, he shall be deemed to have approved the text communicated to him under paragraph 3 and verified the bibliographic data.

  • 6 If the applicant, within the period under paragraph 3, requests reasoned amendments or corrections to the communicated text or keeps to the latest text submitted by him, the Examining Division shall issue a new communication under paragraph 3 if it gives its consent; otherwise it shall resume the examination proceedings.

  • 7 If the fee for grant and publishing or the claims fees are not paid in due time, or if the translations are not filed in due time, the European patent application shall be deemed to be withdrawn.

Rule 71a. Conclusion of the grant procedure

  • 1 The decision to grant the European patent shall be issued if all fees have been paid, a translation of the claims in the two official languages of the European Patent Office other than the language of the proceedings has been filed and there is agreement as to the text to be granted. It shall state which text of the European patent application forms the basis for the decision.

  • 2 Until the decision to grant the European patent, the Examining Division may resume the examination proceedings at any time.

  • 3 If the designation fee becomes due after the communication under Rule 71, paragraph 3, the mention of the grant of the European patent shall not be published until the designation fee has been paid. The applicant shall be informed accordingly.

  • 4 If a renewal fee becomes due after the communication under Rule 71, paragraph 3, and before the next possible date for publication of the mention of the grant of the European patent, the mention shall not be published until the renewal fee has been paid. The applicant shall be informed accordingly.

  • 5 If, in response to an invitation under Rule 71, paragraph 3, the applicant has already paid the fee for grant and publishing or the claims fees, the paid amount shall be credited if a further such invitation is issued.

  • 6 If the European patent application is refused, withdrawn prior to notification of the decision on the grant of a European patent or, at that time, deemed to be withdrawn, the fee for grant and publishing shall be refunded.

Rule 72. Grant of the European patent to different applicants

Where different persons are recorded in the European Patent Register as applicants in respect of different Contracting States, the European Patent Office shall grant the European patent for each Contracting State accordingly.

CHAPTER V. THE EUROPEAN PATENT SPECIFICATION

Rule 73. Content and form of the specification

  • 1 The specification of the European patent shall include the description, the claims and any drawings. It shall also indicate the period for opposing the European patent.

  • 2 The President of the European Patent Office shall determine the form of the publication of the specification and the data to be included.

  • 3 The designated Contracting States shall be indicated in the specification.

Rule 74. Certificate for a European patent

As soon as the specification of the European patent has been published, the European Patent Office shall issue to the proprietor of the patent a certificate for a European patent. The President of the European Patent Office shall prescribe the content, form and means of communication of the certificate and determine the circumstances in which an administrative fee is payable.

PART V. IMPLEMENTING REGULATIONS TO PART V OF THE CONVENTION

CHAPTER I. OPPOSITION PROCEDURE

Rule 75. Surrender or lapse of the patent

An opposition may be filed even if the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States.

Rule 76. Form and content of the opposition

  • 1 Notice of opposition shall be filed in a written reasoned statement.

  • 2 The notice of opposition shall contain:

    • a) particulars of the opponent as provided in Rule 41, paragraph 2(c);

    • b) the number of the European patent against which opposition is filed, the name of the proprietor of the patent and the title of the invention;

    • c) a statement of the extent to which the European patent is opposed and of the grounds on which the opposition is based, as well as an indication of the facts and evidence presented in support of these grounds;

    • d) if the opponent has appointed a representative, particulars as provided in Rule 41, paragraph 2(d).

Rule 77. Rejection of the opposition as inadmissible

  • 1 If the Opposition Division notes that the notice of opposition does not comply with Article 99, paragraph 1, or Rule 76, paragraph 2(c), or does not sufficiently identify the patent against which opposition has been filed, it shall reject the opposition as inadmissible, unless these deficiencies have been remedied before expiry of the opposition period.

  • 2 If the Opposition Division notes that the notice of opposition does not comply with provisions other than those referred to in paragraph 1, it shall communicate this to the opponent and shall invite him to remedy the deficiencies noted within a period to be specified. If the deficiencies are not remedied in due time, the Opposition Division shall reject the opposition as inadmissible.

  • 3 The decision to reject an opposition as inadmissible shall be communicated to the proprietor of the patent, together with a copy of the notice of opposition.

Rule 78. Procedure where the proprietor of the patent is not entitled

  • 1 If a third party provides evidence, during opposition proceedings or during the opposition period, that he has instituted proceedings against the proprietor of the European patent, seeking a decision within the meaning of Article 61, paragraph 1, opposition proceedings shall be stayed unless the third party communicates to the European Patent Office in writing his consent to the continuation of such proceedings. Such consent shall be irrevocable. However, proceedings shall not be stayed until the Opposition Division has deemed the opposition admissible. Rule 14, paragraphs 2 to 4, shall apply mutatis mutandis.

  • 2 Where a third party has, in accordance with Article 99, paragraph 4, replaced the previous proprietor for one or some of the designated Contracting States, the patent as maintained in opposition proceedings may, for these States, contain claims, a description and drawings different from those for the other designated States.

Rule 79. Preparation of the examination of the opposition

  • 1 The Opposition Division shall communicate the notice of opposition to the proprietor of the patent and shall give him the opportunity to file his observations and to amend, where appropriate, the description, claims and drawings within a period to be specified.

  • 2 If several notices of opposition have been filed, the Opposition Division shall communicate them to the other opponents at the same time as the communication under paragraph 1.

  • 3 The Opposition Division shall communicate any observations and amendments filed by the proprietor of the patent to the other parties, and shall invite them, if it considers this expedient, to reply within a period to be specified.

  • 4 In the case of an intervention under Article 105, the Opposition Division may dispense with the application of paragraphs 1 to 3.

Rule 80. Amendment of the European patent

Without prejudice to Rule 138, the description, claims and drawings may be amended, provided that the amendments are occasioned by a ground for opposition under Article 100, even if that ground has not been invoked by the opponent.

Rule 81. Examination of opposition

  • 1 The Opposition Division shall examine those grounds for opposition which are invoked in the opponent’s statement under Rule 76, paragraph 2(c). Grounds for opposition not invoked by the opponent may be examined by the Opposition Division of its own motion if they would prejudice the maintenance of the European patent.

  • 2 Communications under Article 101, paragraph 1, second sentence, and all replies thereto shall be sent to all parties. If the opposition division considers this expedient, it shall invite the parties to reply within a period to be specified.

  • 3 In any communication under Article 101, paragraph 1, second sentence, the proprietor of the European patent shall, where necessary, be given the opportunity to amend, where appropriate, the description, claims and drawings. Where necessary, the communication shall contain a reasoned statement covering the grounds against the maintenance of the European patent.

Rule 82. Maintenance of the European patent in amended form

  • 1 Before the Opposition Division decides to maintain the European patent as amended, it shall inform the parties of the text in which it intends to maintain the patent, and shall invite them to file their observations within two months if they disapprove of that text.

  • 2 If a party disapproves of the text communicated by the Opposition Division, examination of the opposition may be continued. Otherwise, the Opposition Division shall, on expiry of the period under paragraph 1, invite the proprietor of the patent to pay the prescribed fee and to file a translation of any amended claims in the official languages of the European Patent Office other than the language of the proceedings, within a period of three months. Where, in oral proceedings, decisions under Article 106, paragraph 2, or Article 111, paragraph 2, have been based on documents not complying with Rule 49, paragraph 8, the proprietor of the patent shall be invited to file the amended text in a form compliant with Rule 49, paragraph 8, within the three-month period.

  • 3 If the acts required under paragraph 2 are not performed in due time, they may still be performed within two months of a communication concerning the failure to observe the time limit, provided that a surcharge is paid within this period. Otherwise, the patent shall be revoked.

  • 4 The decision to maintain the European patent as amended shall state which text of the patent forms the basis for the decision.

Rule 83. Request for documents

Documents referred to by a party to opposition proceedings shall be filed together with the notice of opposition or the written submissions. If such documents are neither enclosed nor filed in due time upon invitation by the European Patent Office, it may decide not to take into account any arguments based on them.

Rule 84. Continuation of the opposition proceedings by the European Patent Office of its own motion

  • 1 If the European patent has been surrendered in all the designated Contracting States or has lapsed in all those States, the opposition proceedings may be continued at the request of the opponent filed within two months of a communication from the European Patent Office informing him of the surrender or lapse.

  • 2 In the event of the death or legal incapacity of an opponent, the opposition proceedings may be continued by the European Patent Office of its own motion, even without the participation of the heirs or legal representatives. The same shall apply where the opposition is withdrawn.

Rule 85. Transfer of the European patent

Rule 22 shall apply to any transfer of the European patent made during the opposition period or during opposition proceedings.

Rule 86. Documents in opposition proceedings

Part III of the Implementing Regulations shall apply mutatis mutandis to documents filed in opposition proceedings.

Rule 87. Content and form of the new specification of the European patent

The new specification of the European patent shall include the description, claims and drawings as amended. Rule 73, paragraphs 2 and 3, and Rule 74 shall apply.

Rule 88. Costs

  • 1 The apportionment of costs shall be dealt with in the decision on the opposition. Such apportionment shall only take into consideration the expenses necessary to assure proper protection of the rights involved. The costs shall include the remuneration of the representatives of the parties.

  • 2 The Opposition Division shall, on request, fix the amount of costs to be paid under a final decision apportioning them. A bill of costs, with supporting evidence, shall be attached to the request. Costs may be fixed once their credibility is established.

  • 3 A request for a decision by the Opposition Division may be filed within one month of the communication on the fixing of costs under paragraph 2. The request shall be filed in writing and state the grounds on which it is based. It shall not be deemed to be filed until the prescribed fee has been paid.

  • 4 The Opposition Division shall decide on the request under paragraph 3 without oral proceedings.

Rule 89. Intervention of the assumed infringer

  • 1 Notice of intervention shall be filed within three months of the date on which proceedings referred to in Article 105 are instituted.

  • 2 Notice of intervention shall be filed in a written reasoned statement; Rules 76 and 77 shall apply mutatis mutandis. The notice of intervention shall not be deemed to have been filed until the opposition fee has been paid.

CHAPTER II. PROCEDURE FOR LIMITATION OR REVOCATION

Rule 90. Subject of proceedings

The subject of limitation or revocation proceedings under Article 105a shall be the European patent as granted or as amended in opposition or limitation proceedings before the European Patent Office.

Rule 91. Responsibility for proceedings

Decisions on requests for limitation or revocation of the European patent under Article 105a shall be taken by the Examining Division. Article 18, paragraph 2, shall apply mutatis mutandis.

Rule 92. Requirements of the request

  • 1 The request for limitation or revocation of a European patent shall be filed in writing in one of the official languages of the European Patent Office. It may also be filed in an official language of a Contracting State, provided that a translation is filed in one of the official languages of the European Patent Office within the period specified in Rule 6, paragraph 2. Part III of the Implementing Regulations shall apply mutatis mutandis to documents filed in limitation or revocation proceedings.

  • 2 The request shall contain:

    • a) particulars of the proprietor of the European patent making the request (the requester) as provided in Rule 41, paragraph 2(c), and an indication of the Contracting States for which the requester is the proprietor of the patent;

    • b) the number of the patent whose limitation or revocation is requested, and a list of the Contracting States in which the patent has taken effect;

    • c) where appropriate, the names and addresses of the proprietors of the patent for those Contracting States in which the requester is not the proprietor of the patent, and evidence that the requester is entitled to act on their behalf in the proceedings;

    • d) where limitation of the patent is requested, the complete version of the amended claims and, as the case may be, of the amended description and drawings;

    • e) where the requester has appointed a representative, particulars as provided in Rule 41, paragraph 2(d).

Rule 93. Precedence of opposition proceedings

  • 1 The request for limitation or revocation shall be deemed not to have been filed if opposition proceedings in respect of the patent are pending at the time of filing the request.

  • 2 If, at the time of filing an opposition to a European patent, limitation proceedings in respect of that patent are pending, the Examining Division shall terminate the limitation proceedings and order the reimbursement of the limitation fee. The reimbursement shall also be ordered in respect of the fee referred to in Rule 95, paragraph 3, first sentence, if the requester has already paid this fee.

Rule 94. Rejection of the request as inadmissible

If the Examining Division finds that the request for limitation or revocation fails to comply with the requirements of Rule 92, it shall invite the requester to correct the deficiencies noted, within a period to be specified. If the deficiencies are not corrected in due time, the Examining Division shall reject the request as inadmissible.

Rule 95. Decision on the request

  • 1 If a request for revocation is admissible, the Examining Division shall revoke the patent and communicate this to the requester.

  • 2 If a request for limitation is admissible, the Examining Division shall examine whether the amended claims constitute a limitation vis-à-vis the claims as granted or amended in opposition or limitation proceedings and comply with Article 84 and Article 123, paragraphs 2 and 3. If the request does not comply with these requirements, the Examining Division shall give the requester one opportunity to correct any deficiencies noted, and to amend the claims and, where appropriate, the description and drawings, within a period to be specified.

  • 3 If a request for limitation is allowable under paragraph 2, the Examining Division shall communicate this to the requester and invite him to pay the prescribed fee and to file a translation of the amended claims in the official languages of the European Patent Office other than the language of the proceedings, within a period of three months; Rule 82, paragraph 3, first sentence, shall apply mutatis mutandis. If the requester performs these acts in due time, the Examining Division shall limit the patent.

  • 4 If the requester does not respond in due time to the communication issued under paragraph 2, or if the request for limitation is not allowable, or if the requester fails to perform the acts required under paragraph 3 in due time, the Examining Division shall reject the request.

Rule 96. Content and form of the amended European patent specification