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The European Patent Application as an Object of Property

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

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

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.

Unless 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.

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 Convention provides otherwise. 


Revocation of European patents

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 Convention;

(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, 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.

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.

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. 

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Examination of European patent application

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

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.

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 If the applicant fails to reply in due time to an invitation, the European patent application shall be deemed to be withdrawn.

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.

If a date of filing cannot be accorded, the application shall not be dealt with as a European patent application.

If the European patent application has been accorded a date of filing, the European Patent Office shall examine, in accordance with the Implementing Regulations as well as any other requirement laid down in the Implementing Regulations.

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

If any deficiency noted in the examination 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.

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.

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.

If no request for examination has been made in due time, the application shall be deemed to be withdrawn.

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

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

An applicant claiming priority shall file a copy of the results of any search carried out by the authority with which the previous application was filed together with the European patent application, in the case of a Euro-PCT application on entry into the European phase, or without delay after such results have been made available to him. The copy shall be deemed to be duly filed if it is available to the European Patent Office and to be included in the file of the European patent application under the conditions determined by the President of the European Patent Office. The European Patent Office may invite the applicant to provide, within a period of two months, information on prior art.

Proceedings before the European Patent Office shall be interrupted: 

(a) in the event of the death or legal incapacity of the applicant for or proprietor of a European patent or of the person authorised by national law to act on his behalf. To the extent that the above events do not affect the authorisation of a representative as appointed, proceedings shall be interrupted only on application by such representative;

(b) in the event of the applicant for or proprietor of a patent, as a result of some action taken against his property, being prevented by legal reasons from continuing the proceedings; 

(c) in the event of the death or legal incapacity of the representative of an applicant for or proprietor of a patent, or of his being prevented for legal reasons resulting from action taken against his property from continuing the proceedings. 

When, in the cases, the European Patent Office has been informed of the identity of the person authorised to continue the proceedings, it shall notify such person and, where applicable, any third party, that the proceedings will be resumed as from a specified date.

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Filing of a European patent application

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.

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.

A European patent application may be filed: 

(a) with the European Patent Office, or 

(b) if the law of a Contracting State so permits 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.

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. A European patent application the subject of which has been made secret shall not be forwarded to the European Patent Office. A European patent application not forwarded to the European Patent Office in due time shall be deemed to be withdrawn. 

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. 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.

European patent applications may be filed in writing with the European Patent Office in Munich, The Hague or Berlin, or the National authorities. 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. 

If the European patent application is filed with an authority, 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.

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. 

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

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. 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. 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.

The filing fee and search fee shall be paid within one month of filing the European patent application. 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. The additional fee 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, whichever period expires last.

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. 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.

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. 

A reference to a previously filed application 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.

Where the application contains a reference, 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.

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Applying for European Patent

General requirements

Persons entitled to apply for and obtain a European patent

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

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

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. 

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.

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.

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

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.

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