Convention on the grant of European Patents

(European Patent Convention)

of 5 October 1973

 

text as amended by the act revising Article 63 EPC of 17 December 1991and by decisions of the Administrative Council of the European Patent Organisationof 21 December 1978, 13 December 1994, 20 October 1995, 5 December 1996 and 10 December 1998

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 hereby estab­lished.

Article 2

European patent

(1) Patents granted by virtue of 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 otherwise provided in this Convention.

 

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) a European Patent Office;

(b) an 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.

 

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

Seat

 

(1) The Organisation shall have its seat at Munich.

(2) The European Patent Office shall be set up at 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 the territory of 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 relevant contract.

(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 provisions of 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 provisions of 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 laid down in 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 competent jurisdiction in the Federal Republic of Germany, unless the contract concluded between the parties designates the courts of another State;

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

 

Chapter III

The European Patent Office

 

Article 10

Direction

 

(1) The European Patent Office shall be directed 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, including the adoption of internal administrative instructions and the publication of guidance for the public, to ensure the functioning of the European Patent Office;

(b) in so far as this Convention contains no provi­sions in this respect, he shall prescribe which trans­actions are to be carried out at the European Patent Office at Munich and its branch at The Hague re­spectively;

(c) he may place before the Administrative Council any proposal for amending this Convention and any proposal for general regulations or 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 personnel;

(g) subject to the provisions of Article 11, he shall appoint and promote the employees;

(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 decision of the Administrative Coun­cil.

(2) The Vice-Presidents shall be appointed by deci­sion of the Administrative Council after the President 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 decision of the Adminis­trative Council, taken on a proposal from the Presi­dent of the European Patent Office. They may be re-appointed by decision of 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.

 

Article 12

Duties of office

 

The 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 Organisation 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, as the case may be.

 

Article 14

Languages of the European Patent Office

 

(1) The official languages of the European Patent Of­fice shall be English, French and German. Euro­pean patent applications must be filed in one of these lan­guages.

(2) However, natural or legal persons having their residence or principal place of business within the ter­ritory of 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 European patent applications in an official language of that State. Nevertheless, a trans­lation in one of the official languages of the European Patent Office must be filed within the time limit pre­scribed in the Implementing Regulations; throughout the proceedings before the European Patent Office, such translation may be brought into conformity with the original text of the application.

(3) The official language of the European Patent Of­fice in which the European patent application is filed or, in the case referred to in paragraph 2, that of the translation, shall be used as the language of the pro­ceedings in all proceedings before the European Pat­ent Office concerning the application or the re­sulting patent, unless otherwise provided in the Im­plementing Regulations.

(4) The persons referred to in paragraph 2 may also file documents which have to be filed within a time limit in an official language of the Contracting State concerned. They must however file a translation in the language of the proceedings within the time limit prescribed in the Implementing Regulations; in the cases provided for in the Implementing Regulations, they may file a translation in a different official lan­guage of the European Patent Office.

(5) If any document, other than those making up the European patent application, is not filed in the lan­guage prescribed by this Convention, or if any trans­lation required by virtue of this Convention is not filed in due time, the document shall be deemed not to have been received.

(6) European patent applications shall be published in the language of the proceedings.

(7) The specifications of European patents shall be published in the language of the proceedings; they shall include a translation of the claims in the two other official languages of the European Patent Of­fice.

(8) There 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.

(9) Entries in the Register of European Patents 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

The departments charged with the procedure

 

For implementing the procedures laid down in this Convention, there 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 in the branch at The Hague. It shall be responsible for the examination on filing and the examination as to formal requirements of each European patent application up to the time when a request for examination has been made or the applicant has indicated under Article 96, para­graph 1, that he desires to proceed further with his application. It shall also be responsible for the publi­cation of the European patent application and of the European search report.

 

Article 17

Search Divisions

 

The Search Divisions shall be in the branch at The Hague. They shall be responsible for drawing up European search reports.

 

Article 18

Examining Divisions

 

(1) An Examining Division shall be responsible for the examination of each European patent application from the time when the Receiving Section ceases to be responsible.

(2) An Examining Division shall consist of three tech­nical examiners. Nevertheless, the examination prior to a final decision shall, as a general rule, be en­trusted to one member of the 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 Di­vision shall be decisive.

 

Article 19

Opposition Divisions

 

(1) An Opposition Division shall be responsible for the examination of oppositions against any European patent.

(2) An Opposition Division shall consist of three tech­nical 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 shall not be the Chairman. Prior to the taking of a final decision 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 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 the decisions of the Receiving Section, Examining Divisions, Opposition Divisions and of the Legal Division.

(2) For appeals from a decision 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 of a European patent and was taken by an Ex­amining Division consisting of less than four mem­bers;

(b) three technically qualified members 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 qualified members 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 points of law referred to it by Boards of Appeal;

(b) giving opinions on points of law referred to it by the President of the European Patent Office under the conditions laid down in Article 112.

(2) For giving decisions or opinions, the Enlarged Board of Appeal shall consist of five legally qualified members and two technically qualified members. One of the legally qualified members 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.

(2) The members of the Boards may not be mem­bers of the Receiving Section, Examining Divisions, Oppo­sition Divisions or of the 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 provisions of 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 any appeal if they have any personal interest therein, 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. No objec­tion may 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 trying an infringement or revocation action, the European Patent Office shall be obliged, against 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 the issue of 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, subject to the provisions of its Rules of Procedure, 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 in the event of his being pre­vented from attending to his duties.

(2) The duration of the terms of office of the Chair­man and the Deputy Chairman shall be three years. The terms of office shall be renewable.

 

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. This term of office shall not be renewable.

(4) The Board shall perform the duties given 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 the provisions of an agreement to be concluded between the Euro­pean Patent Organisation and the World Intellectual Prop­erty Organization.

(2) Any other intergovernmental organisation charged with the implementation of 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 any provisions contained in such agreement.

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

 

Article 31

Languages of the Administrative Council

 

(1) The languages in use 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 mentioned in para­graph 1.

 

Article 32

Staff, premises and equipment

 

The European Patent Office shall place at the dis­posal of the Administrative Council and any body 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 the following provisions of this Convention:

(a) the time limits laid down in this Convention; this shall apply to the time limit laid down in Article 94 only in the conditions laid down in Article 95;

(b) the Implementing Regulations.

(2) The Administrative Council shall be competent, in conformity with this Convention, to adopt or amend the following provisions:

(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, and rules for the grant, of any supple­mentary benefits;

(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 tech­nical examiner. Such decision may be rescinded.

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

 

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, sub­ject to the application of the provisions of Article 36.

 

Article 35

Voting rules

 

(1) The Administrative Council shall take its deci­sions other than those referred to in paragraph 2 by a sim­ple majority of the Contracting States represented and voting.

(2) A majority of three-quarters of the votes of the Con­tracting States represented and voting shall be re­quired for the decisions which the Administrative Coun­cil is empowered to take under Article 7, Article 11, paragraph 1, Article 33, Article 39, paragraph 1, Article 40, paragraphs 2 and 4, Article 46, Article 87, Article 95, Article 134, Article 151, paragraph 3, Arti­cle 154, paragraph 2, Article 155, paragraph 2, Article 156, Arti­cle 157, paragraphs 2 to 4, Article 160, para­graph 1, second sentence, Article 162, Article 163, Article 166, Article 167 and Article 172.

(3) 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 higher 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

Cover for expenditure

 

The expenditure of the Organisation shall be covered:

(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;

 

Article 38

The Organisation’s own resources

 

The Organisation’s own resources shall be the yield from the fees laid down in this Convention, and also all receipts, whatever their nature.

 

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 per cent 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 its 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 under Article 38 and the proportion referred to under 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 determined in proportion to the total number of patent applications filed in these States.

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

(5) Article 39, paragraphs 3 and 4, shall apply muta­tis mutandis to the special financial contributions.

(6) The special financial contributions shall be re­paid together 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 mentioned in paragraphs 3 and 4 above.

(7) The special financial contributions remitted in any accounting period shall be wholly repaid 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 make advances to the Organisation, on account of their pay­ments and contributions, within the limit of the amount fixed by the Administrative Council. Such advances shall be apportioned in proportion to the amounts due by the Contracting States for the accounting period in question.

(2) Article 39, paragraphs 3 and 4, shall apply muta­tis mutandis to the advances.

 

Article 42

Budget

 

(1)Income and expenditure of the Organisation shall form the subject of estimates in respect of each accounting period and shall be shown in the budget. If necessary, there may be amending or supplementary budgets.

(2)The budget shall be balanced as between income and expenditure.

(3)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 any provisions to the contrary are contained in the Financial Regulations.

(2) Subject to the conditions to be laid down in 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 lay the draft budget before the Administrative Council not 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, ac­cording to the provisions of 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, sub-paragraph (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 above. 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, subject to the limits and conditions laid down in the Financial Regulations, transfer funds as 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, which shall be based on vouchers and shall take place, if necessary, in situ, shall ascertain that all income has been received and all expenditure effected in a lawful and proper manner and that the financial management is sound. The auditors shall draw up a report 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 give the President of the European Patent Office a discharge in respect of the implementation of the budget.

 

Article 50

Financial Regulations

 

The Financial Regulations shall in particular establish:

(a)the procedure 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 accounting and paying 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.

 

Article 51

Rules relating to Fees

 

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 which are susceptible of industrial application, which are new and which involve an inventive step.

(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) The provisions of paragraph 2 shall exclude pat­entability of the subject-matter or activities referred to in that provision only to the extent to which a Euro­pean patent application or European patent relates to such subject-matter or activities as such.

(4) Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body shall not be regarded as inventions which are susceptible of in­dustrial application within the meaning of paragraph 1. This provision shall not apply to products, in par­ticular substances or compositions, for use in any of these methods.

 

Article 53

Exceptions to patentability

 

European patents shall not be granted in respect of:

(a) inventions the publication or exploitation of which would be contrary to “ordre public” or morality, pro­vided that the 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 does not apply to microbiological processes or the products thereof.

 

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, of which the dates of filing are prior to the date referred to in paragraph 2 and which were published under Article 93 on or after that date, shall be considered as comprised in the state of the art.

(4) Paragraph 3 shall be applied only in so far as a Contracting State designated in respect of the later application, was also designated in respect of the earlier application as published.

(5) The provisions of paragraphs 1 to 4 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 52, paragraph 4, pro­vided that its use for any method referred to in that paragraph 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 period 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 are not to 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 European patents — 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 the 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 his 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 the Euro­pean patent shall belong to the person whose Euro­pean patent application has the earliest date of filing; however, this provision shall apply only if this first ap­plication has been published under Article 93 and shall only have effect in respect of the Contracting States designated in that application as published.

(3) For the purposes of proceedings before the Euro­pean Patent Office, the applicant shall be deemed to be entitled to exercise the right to the European pat­ent.

Article 61

European patent applications by persons not having the right to a European patent

(1) If by a final decision it is adjudged that a person referred to in Article 60, paragraph 1, other than the applicant, is entitled to the grant of a European pat­ent, that person may, within a period of three months after the decision has become final, provided that the European patent has not yet been granted, in respect of those Contracting States designated in the Euro­pean patent application in which the decision has been taken or recognised, or has to be recognised on the basis of the Protocol on Recognition annexed to this Convention:

(a) prosecute the 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 application be refused.

(2) The provisions of Article 76, paragraph 1, shall apply mutatis mutandis to a new application filed un­der paragraph 1.

(3) The procedure to be followed in carrying out the provisions of paragraph 1, the special conditions ap­plying to a new application filed under paragraph 1 and the time limit for paying the filing, search and designation fees on it are laid down in the Imple­menting Regulations.

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 as 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 of 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 of publication of the mention of its grant, 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 specification of the European pat­ent

(1) Any Contracting State may prescribe that if the text, in which the European Patent Office intends to grant a European patent or maintain a European pat­ent as amended for that State, is not drawn up in one of its official languages, the applicant for or proprietor of the patent shall supply to its central industrial prop­erty office a translation of this text 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 of the European patent or of the maintenance of the European patent as amended 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 applicant for or 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 under Article 93, provisionally confer upon the applicant such protection as is con­ferred by Article 64, in the Contracting States desig­nated in the application as published.

(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, every 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 the said 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 above 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 of the European patent

The European patent application and the resulting patent shall be deemed not to have had, as from the outset, the effects specified in Articles 64 and 67, to the extent that the patent has been revoked in oppo­sition 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 terms of 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 latest filed claims contained in the publication un­der Article 93. However, the European patent as granted or as amended in opposition proceedings shall de­termine retroactively the protection conferred by the European patent 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) However, in the case referred to in Article 14, paragraph 2, the original text shall, in proceedings before the European Patent Office, constitute the ba­sis for determining whether the subject-matter of the application or patent extends beyond the content of the application as filed.

(3) Any Contracting State may provide that a transla­tion, as provided for in this Convention, in an official language of that State, shall in that State be regarded as authentic, except for revocation pro­ceedings, in the event of the application or 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) must 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, and Article 67, para­graph 3, have been complied with mutatis mutandis;

(b) may prescribe that any person who, in that State, in good faith is using 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 otherwise specified in this Convention, 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

APPLICATION FOR EUROPEAN PATENTS

 

Chapter I

Filing and requirements of the European patent application

 

Article 75

Filing of the European patent application

(1) A European patent application may be filed:

(a) at the European Patent Office at Munich or its branch at The Hague, or

(b) if the law of a Contracting State so permits, at the central industrial property office or other compe­tent authority of that State. An application filed in this way shall have the same effect as if it had been filed on the same date at the European Patent Office.

(2) The provisions of 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 each application is to be filed ini­tially with a national authority or make direct filing with another authority subject to prior authorisation.

(3) No Contracting State may provide for or allow the filing of European divisional applications with an au­thority referred to in paragraph 1(b).

Article 76

European divisional applications

(1) A European divisional application must be filed directly with the European Patent Office at Munich or its branch at The Hague. 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 provision is complied with, the divisional applica­tion shall be deemed to have been filed on the date of filing of the earlier application and shall have the benefit of any right to priority.

(2) The European divisional application shall not designate Contracting States which were not desig­nated in the earlier application.

(3) The procedure to be followed in carrying out the provisions of paragraph 1, the special conditions to be complied with by a divisional application and the time limit for paying the filing, search and designation fees are laid down in the Implementing Regulations.

Article 77

Forwarding of European patent applications

(1) The central industrial property office of a Con­tracting State shall be obliged to forward to the Euro­pean Patent Office, in the shortest time compatible with the application of national law concerning the secrecy of inventions in the interests of the State, any European patent applications which have been filed with that office or with other competent authorities in that State.

(2) The Contracting States shall take all appropriate steps to ensure that European patent applications, the subject of which is obviously not liable to secrecy by virtue of the law referred to in paragraph 1, shall be forwarded to the European Patent Office within six weeks after filing.

(3) European patent applications which require fur­ther examination as to their liability to secrecy shall be forwarded in such manner as to reach the European Patent Office within four months after filing, or, where priority has been claimed, fourteen months after the date of priority.

(4) A European patent application, the subject of which has been made secret, shall not be forwarded to the European Patent Office.

(5) European patent applications which do not reach the European Patent Office before the end of the fourteenth month after filing or, if priority has been claimed, after the date of priority, shall be deemed to be withdrawn. The filing, search and designation fees shall be refunded.

Article 78

Requirements of the 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.

(2) A European patent application shall be subject to the payment of the filing fee and the search fee within one month after the filing of the application.

(3) A European patent application must satisfy the conditions laid down in the Implementing Regula­tions.

Article 79

Designation of Contracting States

(1) The request for the grant of a European patent shall contain the designation of the Contracting State or States in which protection for the invention is de­sired.

(2) The designation of a contracting state shall be subject to the payment of the designation fee. The designation fees shall be paid within six months of the date on which the European Patent Bulletin men­tions the publication of the European search report.

(3) The designation of a Contracting State may be withdrawn at any time up to the grant of the European patent. Withdrawal of the designation of all the Con­tracting States shall be deemed to be a withdrawal of the European patent application. Designation fees shall not be refunded.

Article 80

Date of filing

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

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

(b) the designation of at least one Contracting State;

(c) information identifying the applicant;

(d) a description and one or more claims in one of the languages referred to in Article 14, paragraphs 1 and 2, even though the description and the claims do not comply with the other requirements of this Con­ven­tion.

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 must 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

The 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

The abstract

The abstract shall merely serve for use as technical information; it may not be taken into account for any other purpose, in particular not for the purpose of in­terpreting the scope of the protection sought nor for the purpose of applying Article 54, paragraph 3.

Article 86

Renewal fees for European patent applications

(1) Renewal fees shall be paid to the European Pat­ent Office in accordance with the Implementing Regulations in respect of European patent applica­tions. These fees shall be due in respect of the third year and each subsequent year, calculated from the date of filing of the application.

(2) When a renewal fee has not been paid on or be­fore the due date, the fee may be validly paid within six months of the said date, provided that the addi­tional fee is paid at the same time.

(3) If the renewal fee and any additional fee have not been paid in due time the European patent appli­ca­tion shall be deemed to be withdrawn. The Euro­pean Patent Office alone shall be competent to de­cide this.

(4) 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.

Chapter II

Priority

 

Article 87

Priority right

(1) A person who has duly filed in or for any State party to the Paris Convention for the Protection of In­dustrial Property, an application for a patent or for the registration of a utility model or for a utility certificate or for an inventor’s certificate, or his successors 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) By a regular national filing is meant any filing that is sufficient to establish the date on which the appli­cation was filed, whatever may be the outcome of the application.

(4) A subsequent application for the same subject-matter as a previous first application and filed in or in respect of 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.

(5) If the first filing has been made in a State which is not a party to the Paris Convention for the Protec­tion of Industrial Property, paragraphs 1 to 4 shall ap­ply only in so far as that State, according to a notifica­tion published by the Administrative Council, and by virtue of bilateral or multilateral agreements, grants on the basis of a first filing made at the European Patent Of­fice as well as on the basis of a first filing made in or for any Contracting State and subject to conditions equivalent to those laid down in the Paris Convention, a right of priority having equivalent ef­fect.

Article 88

Claiming priority

(1) An applicant for a European patent desiring to take advantage of the priority of a previous applica­tion shall file a declaration of priority, a copy of the previous application and, if the language of the latter is not one of the official languages of the European Patent Office, a translation of it in one of such official languages. The procedure to be followed in carrying out these provisions is laid down in 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

(1) The Receiving Section shall examine whether:

(a) the European patent application satisfies the re­quirements for the accordance of a date of filing;

(b) the filing fee and the search fee have been paid in due time;

(c) in the case provided for in Article 14, paragraph 2, the translation of the European patent application in the language of the proceedings has been filed in due time.

(2) If a date of filing cannot be accorded, the Receiv­ing Section shall give the applicant an oppor­tunity to correct the deficiencies in accordance with the Im­plementing Regulations. If the deficiencies are not remedied in due time, the application shall not be dealt with as a European patent application.

(3) If the filing fee and the search fee have not been paid in due time or, in the case provided for in Article 14, paragraph 2, the translation of the application in the language of the proceedings has not been filed in due time, the application shall be deemed to be with­drawn.

Article 91

Examination as to formal requirements

(1) If a European patent application has been ac­corded a date of filing, and is not deemed to be with­drawn by virtue of Article 90, paragraph 3, the Re­ceiving Section shall examine whether:

(a) the requirements of Article 133, paragraph 2, have been satisfied;

(b) the application meets the physical requirements laid down in the Implementing Regulations for the implementation of this provision;

(c) the abstract has been filed;

(d) the request for the grant of a European patent satisfies the mandatory provisions of the Implement­ing Regulations concerning its content and, where appropriate, whether the requirements of this Con­vention concerning the claim to priority have been satisfied;

(e) the designation fees have been paid;

(f) the designation of the inventor has been made in accordance with Article 81;

(g) the drawings referred to in Article 78, paragraph 1(d), were filed on the date of filing of the application.

(2) Where the Receiving Section notes that there are deficiencies which may be corrected, it shall give the applicant an opportunity to correct them in accor­dance with the Implementing Regulations.

(3) If any deficiencies noted in the examination un­der paragraph 1(a) to (d) are not corrected in accor­dance with the Implementing Regulations, the appli­cation shall be refused; where the provisions referred to in paragraph 1(d) concern the right of priority, this right shall be lost for the application.

(4) Where, in the case referred to in paragraph 1(e), the designation fee has not been paid in due time in respect of any designated State, the designation of that State shall be deemed to be withdrawn.

(5) Where, in the case referred to in paragraph 1(f), the omission of the designation of the inventor is not, in accordance with the Implementing Regulations and subject to the exceptions laid down therein, corrected within 16 months after the date of filing of the Euro­pean patent application or, if priority is claimed, after the date of priority, the application shall be deemed to be withdrawn.

(6) Where, in the case referred to in paragraph 1(g), the drawings were not filed on the date of filing of the application and no steps have been taken to correct the deficiency in accordance with the Implementing Regulations, either the application shall be re-dated to the date of filing of the drawings or any reference to the drawings in the application shall be deemed to be deleted, according to the choice exercised by the applicant in accordance with the Implementing Regulations.

Article 92

The drawing up of the European search report

(1) If a European patent application has been ac­corded a date of filing and is not deemed to be with­drawn by virtue of Article 90, paragraph 3, the Search Division shall draw up the European search report on the basis of the claims, with due regard to the de­scription and any drawings, in the form prescribed in the Implementing Regulations.

(2) Immediately after it has been drawn up, the Euro­pean search report shall be transmitted to the appli­cant together with copies of any cited docu­ments.

Article 93

Publication of a European patent application

(1) A European patent application shall be pub­lished as soon as possible after the expiry of a period of eighteen months from the date of filing or, if priority has been claimed, as from the date of priority. Nev­ertheless, at the request of the applicant the applica­tion may be published before the expiry of the period referred to above. It shall be published simultane­ously with the publication of the specification of the European patent when the grant of the patent has become effective before the expiry of the period re­ferred to above.

(2) The publication shall contain the description, the claims and any drawings as filed and, in an annex, the European search report and the abstract, in so far as the latter are available before the termination of the technical preparations for publication. If the Euro­pean search report and the abstract have not been published at the same time as the application, they shall be published separately.

Article 94

Request for examination

(1) The European Patent Office shall examine, on written request, whether a European patent applica­tion and the invention to which it relates meet the re­quirements of this Convention.

(2) A request for examination may be filed by the applicant up to the end of six months after the date on which the European Patent Bulletin mentions the publication of the European search report. The re­quest shall not be deemed to be filed until after the examination fee has been paid. The request may not be withdrawn.

(3) If no request for examination has been filed by the end of the period referred to in paragraph 2, the application shall be deemed to be withdrawn.

Article 95

Extension of the period within which requests for ex­amination may be filed

(1) The Administrative Council may extend the pe­riod within which requests for examination may be filed if it

is established that European patent applica­tions can­not be examined in due time.

(2) If the Administrative Council extends the period, it may decide that third parties will be entitled to make requests for examination. In such cases, it shall determine the appropriate rules in the Implementing Regulations.

(3) Any decision of the Administrative Council to ex­tend the period shall apply only in respect of applica­tions filed after the publication of such decision in the Official Journal of the European Patent Office.

(4) If the Administrative Council extends the period, it must lay down measures with a view to restoring the original period as soon as possible.

Article 96

Examination of the European patent application

(1) If the applicant for a European patent has filed the request for examination before the European search report has been transmitted to him, the Euro­pean Patent Office shall invite him after the transmis­sion of the report to indicate, within a period to be deter­mined, whether he desires to proceed further with the European patent application.

(2) If the examination of a European patent applica­tion 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, in accordance with the Implementing Regulations and as often as necessary, to file his ob­servations within a period to be fixed by the Examin­ing Division.

(3) If the applicant fails to reply in due time to any in­vitation under paragraph 1 or paragraph 2, the appli­cation shall be deemed to be withdrawn.

Article 97

Refusal or grant

(1) The Examining Division shall refuse a European patent application if it is of the opinion that such ap­plication or the invention to which it relates does not meet the requirements of this Convention, except where a different sanction is provided for by this Con­vention.

(2) If the Examining Division is of the opinion that the application and the invention to which it relates meet the requirements of this Convention, it shall de­cide to grant the European patent for the designated Con­tracting States provided that:

(a) it is established, in accordance with the provi­sions of the Implementing Regulations, that the appli­cant approves the text in which the Examining Divi­sion in­tends to grant the patent;

(b) the fees for grant and printing are paid within the time limit prescribed in the Implementing Regulations;

(c) the renewal fees and any additional fees already due have been paid.

(3) If the fees for grant and printing are not paid in due time, the application shall be deemed to be with­drawn.

(4) The decision to grant a European patent shall not take effect until the date on which the European Pat­ent Bulletin mentions the grant. This mention shall be published at least 3 months after the start of the time limit referred to in paragraph 2(b).

(5) Provision may be made in the Implementing Regulations for the applicant to file a translation, in the two official languages of the European Patent Of­fice other than the language of the proceedings, of the claims appearing in the text in which the Examin­ing Division intends to grant the patent. In such case, the period laid down in paragraph 4 shall be at least five months. If the translation has not been filed in due time, the application shall be deemed to be with­drawn.

(6) At the request of the applicant, mention of grant of the European patent shall be published before ex­piry of the time limit under paragraph4 or5. Such re­quest may only be made if the requirements pursuant to paragraphs2 and5 are met.

Article 98

Publication of a specification of the European patent

At the same time as it publishes the mention of the grant of the European patent, the European Patent Office shall publish a specification of the European patent containing the description, the claims and any drawings.

Part V

OPPOSITION PROCEDURE

 

Article 99

Opposition

(1) Within nine months from the publication of the mention of the grant of the European patent, any per­son may give notice to the European Patent Office of opposition to the European patent granted. Notice of opposition shall be filed in a written reasoned state­ment. It 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) An opposition may be filed even if the European patent has been surrendered or has lapsed for all the designated States.

(4) Opponents shall be parties to the opposition pro­ceedings as well as the proprietor of the patent.

(5) 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. By derogation from Article 118, the previ­ous proprietor and the person making the re­quest shall not be deemed to be 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 within the terms of 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 in accordance with Article 61, beyond the content of the earlier applica­tion as filed.

Article 101

Examination of the opposition

(1) If the opposition is admissible, the Opposition Di­vision shall examine whether the grounds for opposi­tion laid down in Article 100 prejudice the mainte­nance of the European patent.

(2) In the examination of the opposition, which shall be conducted in accordance with the provisions of the Implementing Regulations, the Opposition Division shall invite the parties, as often as necessary, to file observations, within a period to be fixed by the Oppo­sition Division, on communications from another party or issued by itself.

Article 102

Revocation or maintenance of the European patent

(1) If the Opposition Division is of the opinion that the grounds for opposition mentioned in Article 100 prejudice the maintenance of the European patent, it shall revoke the patent.

(2) If the Opposition Division is of the opinion that the grounds for opposition mentioned in Article 100 do not prejudice the maintenance of the patent una­mended, 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 patent during the opposition pro­ceedings, the patent and the invention to which it re­lates meet the requirements of this Convention, it shall decide to maintain the patent as amended, pro­vided that:

(a) it is established, in accordance with the provi­sions of the Implementing Regulations, that the pro­prietor of the patent approves the text in which the Opposi­tion Division intends to maintain the patent;

(b) the fee for the printing of a new specification of the European patent is paid within the time limit pre­scribed in the Implementing Regulations.

(4) If the fee for the printing of a new specification is not paid in due time, the patent shall be revoked.

(5) Provision may be made in the Implementing Regulations for the proprietor of the patent to file a translation of any amended claims in the two official languages of the European Patent Office other than the language of the proceedings. If the translation has not been filed in due time the patent shall be re­voked.

Article 103

Publication of a new specification of the European patent

If a European patent is amended under Article 102, paragraph 3, the European Patent Office shall, at the same time as it publishes the mention of the opposi­tion decision, publish a new specification of the Euro­pean patent containing the description, the claims and any drawings, in the amended form.

Article 104

Costs

(1) Each party to the proceedings shall meet the costs he has incurred unless a decision of an Oppo­sition Division or Board of Appeal, for reasons of eq­uity, orders, in accordance with the Implementing Regu-lations, a different apportionment of costs in­curred during taking of evidence or in oral proceed­ings.

(2) On request, the registry of the Opposition Divi­sion shall fix the amount of the costs to be paid under a decision apportioning them. The fixing of the costs by the registry may be reviewed by a decision of the Op­position Division on a request filed within the pe­riod laid down in the Implementing Regulations.

(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 the territory of which enforcement is to be carried out. Verification of such decision shall be limited to its authenticity.

Article 105

Intervention of the assumed infringer

(1) In the event of an opposition to a European pat­ent being filed, any third party who proves that pro­ceed­ings for infringement of the same patent have been instituted against him may, after the opposition period has expired, intervene in the opposition pro­ceedings, if he gives notice of intervention within three months of the date on which the infringement proceedings were instituted. The same shall apply in respect of any third party who proves both that the proprietor of the patent has requested that he cease alleged in­fringement of the patent and that he has in­stituted proceedings for a court ruling that he is not infringing the patent.

(2) Notice of intervention shall be filed in a written reasoned statement. It shall not be deemed to have been filed until the opposition fee has been paid. Thereafter the intervention shall, subject to any ex­ceptions laid down in the Implementing Regulations, be treated as an opposition.

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) An appeal may be filed against the decision of the Opposition Division even if the European patent has been surrendered or has lapsed for all the desig­nated States.

(3) 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 separate appeal.

(4) The apportionment of costs of opposition pro­ceedings cannot be the sole subject of an appeal.

(5) A decision fixing the amount of costs of opposi­tion proceedings cannot be appealed unless the amount is in excess of that laid down in the Rules re­lating to Fees.

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 of appeal

Notice of appeal must be filed in writing at the Euro­pean Patent Office within two months after the date of notification of the decision appealed from. The notice shall not be deemed to have been filed until after the fee for appeal has been paid. Within four months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed.

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 after 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

(1) If the appeal is admissible, the Board of Appeal shall examine whether the appeal is allowable.

(2) In the examination of the appeal, which shall be conducted in accordance with the provisions of the Implementing Regulations, the Board of Appeal shall invite the parties, as often as necessary, to file obser­vations, within a period to be fixed by the Board of Appeal, on communications from another party or is­sued by itself.

(3) If the applicant fails to reply in due time to an in­vi­tation under paragraph 2, the European patent ap­plication shall be deemed to be withdrawn, unless the decision under appeal was taken by the Legal Division.

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 which was ap­pealed emanated from the Receiving Section, the Examining Division shall similarly 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 an important point of law 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 covered by 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.

Part VII

COMMON PROVISIONS

Chapter I

Common provisions governing procedure

Article 113

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 consider and decide upon the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant for or 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

(1) Following the publication of the European patent application, any person may present observations concerning the patentability of the invention in re­spect of which the application has been filed. Such observations must be filed in writing and must include a statement of the grounds on which they are based. That person shall not be a party to the proceedings before the European Patent Office.

(2) The observations referred to in paragraph 1 shall be communicated to the applicant for or proprietor of the patent who may comment on them.

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 envisages refusing 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

Taking of evidence

(1) In any proceedings before an Examining Divi­sion, an Opposition Division, the Legal Division or a Board of Appeal the means of giving or obtaining evi­dence shall include the following:

(a) hearing the parties;

(b) requests for information;

(c) the production of documents;

(d) hearing the witnesses;

(e) opinions by experts;

(f) inspection;

(g) sworn statements in writing.

(2) The Examining Division, Opposition Division or Board of Appeal may commission one of its members to examine the evidence adduced.

(3) If the European Patent Office considers it neces­sary for a party, witness or expert to give evidence orally, it shall either:

(a) issue a summons to the person concerned to appear before it, or

(b) request, in accordance with the provisions of Arti­cle 131, paragraph 2, the competent court in the country of residence of the person concerned to take such evidence.

(4) A party, witness or expert who is summoned before the European Patent Office may request the lat­ter to allow his evidence to be heard by a competent court in his country of residence. On receipt of such a request, or if there has been no reply to the summons by the expiry of a period fixed by the European Patent Office in the summons, the European Patent Office may, in accordance with the provisions of Article 131, paragraph 2, request the competent court to hear the person concerned.

(5) If a party, witness or expert gives evidence be­fore the European Patent Office, the latter may, if it con­siders it advisable for the evidence to be given on oath or in an equally binding form, request the com­petent court in the country of residence of the person concerned to re-examine his evidence under such conditions.

(6) When the European Patent Office requests a competent court to take evidence, it may request the court to take the evidence on oath or in an equally binding form and to permit a member of the depart­ment concerned to attend the hearing and question the party, witness or expert either through the inter­mediary of the court or directly.

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 otherwise provided for in this Convention.

Article 119

Notification

The European Patent Office shall, as a matter of course, notify those concerned of decisions and summonses, and of any notice or other communica­tion from which a time limit is reckoned, or of which those concerned must be notified under other provi­sions of this Convention, or of which notification has been ordered by the President of the European Pat­ent Office. Notifications may, where exceptional cir­cumstances so require, be given through the inter­mediary of the central industrial property offices of the Contracting States.

Article 120

Time limits

The Implementing Regulations shall specify:

(a) the manner of computation of time limits and the conditions under which such time limits may be ex­tended, either because the European Patent Office or the authorities referred to in Article 75, paragraph 1(b), are not open to receive documents or because mail is not delivered in the localities in which the European Patent Office or such authorities are situ­ated or because postal services are generally inter­rupted or subsequently dislocated;

(b) 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 the European patent application is to be re­fused or is refused or deemed to be withdrawn fol­lowing failure to reply within a time limit set by the European Patent Office, the legal consequence pro­vided for shall not ensue or, if it has already ensued, shall be retracted if the applicant requests further processing of the application.

(2) The request shall be filed in writing within two months of the date on which either the decision to refuse the application or the communication that the application is deemed to be withdrawn was notified. The omitted act must be completed within this time limit. The request shall not be deemed to have been filed until the fee for further processing has been paid.

(3) The department competent to decide on the omit­ted act shall decide on the request.

Article 122

Restitutio in integrum

(1) The 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, upon application, have his rights re-established if the non-observance in question has the direct con­sequence, by virtue of this Convention, of causing the refusal of the European patent application, or of a re­quest, or the deeming of the European patent 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 application must be filed in writing within two months from the removal of the cause of non-compli­ance with the time limit. The omitted act must be completed within this period. The application shall only be admissible within the year immediately fol­lowing the expiry of the unobserved time limit. In the case of non-payment of a renewal fee, the period specified in Article 86, paragraph 2, shall be deducted from the period of one year.

(3) The application must state the grounds on which it is based, and must set out the facts on which it re­lies. It shall not be deemed to be filed until after the fee for re-establishment of rights has been paid.

(4) The department competent to decide on the omit­ted act shall decide upon the application.

(5) The provisions of this Article shall not be applica­ble to the time limits referred to in paragraph 2 of this Article, Article 61, paragraph 3, Article 76, paragraph 3, Article 78, paragraph 2, Article 79, paragraph 2, Article 87, paragraph 1, and Article 94, paragraph 2.

(6) Any person who, in a designated Contracting State, in good faith has 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 course of the period between the loss of rights referred to in paragraph 1 and publication 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.

(7) Nothing in this Article shall limit the right of a Con­tracting State to grant restitutio in integrum 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 conditions under which a European patent application or a European patent may be amended in proceedings before the European Patent Office are laid down in the Implementing Regulations. In any case, an applicant shall be allowed at least one op­portunity of amending the description, claims and drawings of his own volition.

(2) A European patent application or a 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 claims of the European patent may not be amended during opposition proceedings in such a way as to extend the protection conferred.

Article 124

Information concerning national patent applications

(1) The Examining Division or the Board of Appeal may invite the applicant to indicate, within a period to be determined by it, the States in which he has made applications for national patents for the whole or part of the invention to which the European patent appli­cation relates, and to give the reference numbers of the said applications.

(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

(1) Rights of the Organisation to the payment of a fee to the European Patent Office shall be extin­guished after four years from the end of the calendar year in which the fee fell due.

(2) Rights against the Organisation for the refunding by the European Patent Office of fees or sums of money paid in excess of a fee shall be extinguished after four years from the end of the calendar year in which the right arose.

(3) The period laid down in paragraphs 1 and 2 shall be interrupted in the case covered by paragraph 1 by a request for payment of the fee and in the case cov­ered by paragraph 2 by a reasoned claim in writing. On interruption it shall begin again immediately and shall end at the latest six years after the end of the year in which it originally began, unless, in the mean­time, judicial proceedings to enforce the right have begun; in this case the period shall end at the earliest one year after the judgment enters into force.

Chapter II

Information to the public or official authori­ties

Article 127

Register of European Patents

The European Patent Office shall keep a register, to be known as the Register of European Patents, which shall contain those particulars the registration of which is provided for by this Convention. No entry shall be made in the Register prior to the publication of the European patent application. The Register shall be open to public inspection.

Article 128

Inspection of files

(1) The 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 for a European patent has invoked the rights under the application against him may obtain inspection of the files prior to 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 prior to the publication of that application and without the consent of the relevant applicant.

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

(5) Even prior to the publication of the European pat­ent application, the European Patent Office may communicate the following bibliographic data to third parties or publish them:

(a) the number of the European patent application;

(b) the date of filing of the European patent applica­tion and, where the priority of a previous application is 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.

Article 129

Periodical publications

The European Patent Office shall periodically publish:

(a) a European Patent Bulletin containing entries made in the Register of European Patents, as well as other particulars the publication of which is prescribed by this Convention;

(b) an Official Journal of the European Patent Of­fice, 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

Exchanges of information

(1) The European Patent Office and, subject to the application of the legislative or regulatory provisions referred to in Article 75, paragraph 2, the central in­dustrial property office of any Contracting State shall, on request, communicate to each other any useful information regarding the filing of European or na­tional patent applications and regarding any pro­ceedings concerning such applications and the re­sulting patents.

(2) The provisions of 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 office of any State which is not a party to this Convention;

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

(c) any other organisation.

(3) The 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 shall treat the information communicated as confidential until the European pat­ent application has been published.

Article 131

Administrative and legal co-operation

(1) Unless otherwise provided in this Convention or in national laws, 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 lays files open to 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) Upon receipt of letters rogatory from the Euro­pean Patent Office, the courts or other competent authori­ties of Contracting States shall undertake, on behalf of that 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 the provisions of 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 either a resi­dence or their principal place of business within the territory of one of the Contracting States must be rep­resented by a professional representative and act through him in all proceedings established by this Convention, other than in filing the European patent application; the Implementing Regulations may permit other exceptions.

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

(4) The Implementing Regulations may prescribe special provisions concerning the common repre­sentation of parties acting in common.

Article 134

Professional representatives

(1) Professional 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 fulfils the following condi­tions may be entered on the list of professional repre­sentatives:

(a) he must be a national of one of the Contracting States;

(b) he must have his place of business or employ­ment within the territory of one of the Contracting States;

(c) he must have passed the European qualifying ex­amination.

(3) Entry shall be effected upon request, accompanied by certificates which must indicate that the con­ditions laid down in paragraph 2 are fulfilled.

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

(5) For the purpose of acting as a professional repre­sentative, any person whose name appears on the list referred to in paragraph 1 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.

(6) The President of the European Patent Office may, in special circumstances, grant exemption from the requirement of paragraph 2(a).

(7) Professional 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 one of the Contracting States and having his place of busi­ness within such State, to the extent that he is enti­tled, within the said State, to act as a professional representative in patent matters. Paragraph 5 shall apply mutatis mutandis.

(8) The Administrative Council may adopt provisions governing:

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

(b) the establishment or recognition of an institute constituted by the persons entitled to act as profes­sional representatives by virtue of either the Euro­pean qualifying examination or the provisions of Arti­cle 163, paragraph 7;

(c) any disciplinary power to be exercised by that institute or the European Patent Office on such persons.

Part VIII

IMPACT ON NATIONAL LAW

Chapter I

Conversion into a national patent applica­tion

Article 135

Request for the application of national procedure

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

(a) when the European patent application is deemed to be withdrawn pursuant to Article 77, para­graph 5, or Article 162, paragraph 4;

(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) The request for conversion shall be filed within three months after the European patent application has been withdrawn or after notification has been made that the application is deemed to be withdrawn, or after a decision has been notified refusing the ap­plication or revoking the European patent. The effect referred to in Article 66 shall lapse if the request is not filed in due time.

Article 136

Submission and transmission of the request

(1) A request for conversion shall be filed with the European Patent Office and shall specify the Con­tracting States in which application of the procedure for the grant of a national patent is desired. The re­quest 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, accompanied by a copy of the files relating to the European patent application or the European pat­ent.

(2) However, if the applicant is notified that the Euro­pean patent application has been deemed to be with­drawn pursuant to Article 77, paragraph 5, the re­quest shall be filed with the central industrial property office with which the application has been filed. That office shall, subject to the provisions of national secu­rity, transmit the request, together with a copy of the European patent application, directly to the central in­dustrial property offices of the Contracting States specified by the applicant in the request. The effect referred to in Article 66 shall lapse if such transmis­sion is not made within twenty months after the date of filing or, if a priority has been claimed, after the date of priority.

Article 137

Formal requirements for conversion

(1) A European patent application transmitted in ac­cordance with Article 136 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 application is transmitted may require that the appli­cant shall, within not less than two months:

(a) pay the national application fee;

(b) file a translation in one of the official languages of the State in question of the original text of the Euro­pean patent application and, where appropriate, of the text, as amended during proceedings before the European Patent Office, which the applicant wishes to submit to the national procedure.

Chapter II

Revocation and prior rights

Article 138

Grounds for revocation

(1) Subject to the provisions of Article 139, a Euro­pean patent may only be revoked under the law of a Contracting State, with effect for its territory, on the following grounds:

(a) if the subject-matter of the European patent is not patentable within the terms of Articles 52 to 57;

(b) if 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) if 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 in accordance with Article 61, beyond the content of the earlier applica­tion as filed;

(d) if the protection conferred by the European pat­ent has been extended;

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

(2) If the grounds for revocation only affect the Euro­pean patent in part, revocation shall be pronounced in the form of a corresponding limitation of the said patent. If the national law so allows, the limitation may be effected in the form of an amendment to the claims, the description or the drawings.

Article 139

Rights of earlier date or 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 in which that Contracting State is designated the same prior right effect as they have with regard to 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

Article 66, Article 124, Articles 135 to 137 and Article 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 European patents

(1) Renewal fees in respect of a European patent may only be imposed for the years which follow that referred to in Article 86, paragraph 4.

(2) Any renewal fees falling due within two months after the publication 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 authorisation 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.

Part X

INTERNATIONAL APPLICATION PURSUANT TO THE PATENT COOPERATION TREATY

Article 150

Application of the Patent Cooperation Treaty

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

(2) International applications filed under the Coop­era­tion Treaty may be the subject of proceedings before the European Patent Office. In such proceed­ings, the provisions of that Treaty shall be applied, supplemented by the provisions of this Convention. In case of conflict, the provisions of the Cooperation Treaty shall prevail. In particular, for an international application the time limit within which a request for examination must be filed under Article 94, paragraph 2, of this Convention shall not expire before the time prescribed by Article 22 or Article 39 of the Coopera­tion Treaty as the case maybe.

(3) An international application, for which the Euro­pean Patent Office acts as designated Office or elected Office, shall be deemed to be a European patent application.

(4) Where reference is made in this Convention to the Cooperation Treaty, such reference shall include the Regulations under that Treaty.

Article 151

The European Patent Office as a receiving Office

(1) The European Patent Office may act as a receiv­ing Office within the meaning of Article 2(xv) of the Cooperation Treaty if the applicant is a resident or national of a Contracting State to this Convention in respect of which the Cooperation Treaty has entered into force.

(2) The European Patent Office may also act as a receiving Office if the applicant is a resident or na­tional of a State which is not a Contracting State to this Convention, but which is a Contracting State to the Cooperation Treaty and which has concluded an agreement with the Organisation whereby the Euro­pean Patent Office acts as a receiving Office, in ac­cordance with the provisions of the Cooperation Treaty, in place of the national office of that State.

(3) Subject to the prior approval of the Administra­tive Council, the European Patent Office may also act as a receiving Office for any other applicant, in accor­dance with an agreement concluded between the Organisation and the International Bureau of the World Intellectual Property Organization.

Article 152

Filing and transmittal of the international application

(1) If the applicant chooses the European Patent Office as a receiving Office for his international applica­tion, he shall file it directly with the European Patent Office. Article 75, paragraph 2, shall nevertheless ap­ply mutatis mutandis.

(2) In the event of an international application being filed with the European Patent Office through the in­termediary of the competent central industrial prop­erty office, the Contracting State concerned shall take all necessary measures to ensure that the application is transmitted to the European Patent Office in time for the latter to be able to comply in due time with the conditions for transmittal under the Cooperation Treaty.

(3) Each international application shall be subject to the payment of the transmittal fee, which shall be payable within one month after receipt of the applica­tion.

Article 153

The European Patent Office as a designated Office

(1) The European Patent Office shall act as a desig­nated Office within the meaning of Article 2(xiii) of the Cooperation Treaty for those Contracting States to this Convention in respect of which the Cooperation Treaty has entered into force and which are desig­nated in the international application if the applicant informs the receiving Office in the international appli­cation that he wishes to obtain a European patent for these States. The same shall apply if, in the interna­tional application, the applicant designates a Con­tracting State of which the national law provides that designation of that State shall have the effect of the application being for a European patent.

(2) When the European Patent Office acts as a des­ignated Office, the Examining Division shall be com­petent to take decisions which are required under Ar­ticle 25, paragraph 2(a), of the Cooperation Treaty.

Article 154

The European Patent Office as an International Searching Authority

(1) The European Patent Office shall act as an Inter­national Searching Authority within the meaning of Chapter I of the Cooperation Treaty for applicants who are residents or nationals of a Contracting State in respect of which the Cooperation Treaty has en­tered into force, subject to the conclusion of an agreement between the Organisation and the Inter­national Bureau of the World Intellectual Property Or­ganization.

(2) Subject to the prior approval of the Administra­tive Council, the European Patent Office shall also act as an International Searching Authority for any other ap­plicant, in accordance with an agreement concluded between the Organisation and the Interna­tional Bu­reau of the World Intellectual Property Or­ganization.

(3) The Boards of Appeal shall be responsible for deciding on a protest made by an applicant against an additional fee charged by the European Patent Office under the provisions of Article 17, paragraph 3(a), of the Cooperation Treaty.

Article 155

The European Patent Office as an International Preliminary Examining Authority

(1) The European Patent Office shall act as an Inter­national Preliminary Examining Authority within the meaning of Chapter II of the Cooperation Treaty for applicants who are residents or nationals of a Contracting State bound by that Chapter, subject to the conclusion of an agreement between the Organi­sation and the International Bureau of the World In­tellectual Property Organization.

(2) Subject to the prior approval of the Administra­tive Council, the European Patent Office shall also act as an International Preliminary Examining Author­ity for any other applicant, in accordance with an agreement concluded between the Organisation and the Interna­tional Bureau of the World Intellectual Property Or­ganization.

(3) The Boards of Appeal shall be responsible for deciding on a protest made by an applicant against an additional fee charged by the European Patent Office under the provisions of Article 34, paragraph 3(a), of the Cooperation Treaty.

Article 156

The European Patent Office as an elected Office

The European Patent Office shall act as an elected Office within the meaning of Article 2(xiv) of the Co-operation Treaty if the applicant has elected any of the designated States referred to in Article 153, para­graph 1, or Article 149, paragraph 2, for which Chapter II of that Treaty has become binding. Subject to the prior approval of the Administrative Council, the same shall apply where the applicant is a resident or national of a State which is not a party to that Treaty or which is not bound by Chapter II of that Treaty, provided that he is one of the persons whom the As­sembly of the International Patent Cooperation Union has decided to allow, pursuant to Article 31, para­graph 2(b), of the Cooperation Treaty, to make a de­mand for international preliminary examination.

Article 157

International search report

(1) Without prejudice to the provisions of para­graphs 2 to 4, the international search report under Article 18 of the Cooperation Treaty or any declara­tion under Article 17, paragraph 2(a), of that Treaty and their publication under Article 21 of that Treaty shall take the place of the European search report and the mention of its publication in the European Patent Bulletin.

(2) Subject to the decisions of the Administrative Council referred to in paragraph 3:

(a) a supplementary European search report shall be drawn up in respect of all international applica­tions;

(b) the applicant shall pay the search fee, which shall be paid at the same time as the national fee provided for in Article 22, paragraph 1, or Article 39, paragraph 1, of the Cooperation Treaty. If the search fee is not paid in due time the application shall be deemed to be withdrawn.

(3) The Administrative Council may decide under what conditions and to what extent:

(a) the supplementary European search report is to be dispensed with;

(b) the search fee is to be reduced.

(4) The Administrative Council may at any time res­cind the decisions taken pursuant to paragraph 3.

Article 158

Publication of the international application and its supply to the European Patent Office

(1) Publication under Article 21 of the Cooperation Treaty of an international application for which the European Patent Office is a designated Office shall, subject to paragraph 3, take the place of the publica­tion of a European patent application and shall be mentioned in the European Patent Bulletin. Such an application shall not however be considered as com­prised in the state of the art in accordance with Article 54, paragraph 3, if the conditions laid down in para­graph 2 are not fulfilled.

(2) The international application shall be supplied to the European Patent Office in one of its official languages. The applicant shall pay to the European Patent Office the national fee provided for in Article 22, paragraph 1, or Article 39, paragraph 1, of the Cooperation Treaty.

(3) If the international application is published in a language other than one of the official languages of the European Patent Office, that Office shall publish the international application, supplied as specified in paragraph 2. Subject to the provisions of Article 67, paragraph 3, the provisional protection in accordance with Article 67, paragraphs 1 and 2, shall be effective from the date of that publication.

Part XI

TRANSITIONAL PROVISIONS

Article 159

Administrative Council during a transitional period

(1) The States referred to in Article 169, paragraph 1, shall appoint their representatives to the Adminis­tra­tive Council; on the invitation of the Government of the Federal Republic of Germany, the Administrative Council shall meet no later than two months after the entry into force of this Convention, particularly for the purpose of appointing the President of the European Patent Office.

(2) The duration of the term of office of the first Chair­man of the Administrative Council appointed after the entry into force of this Convention shall be four years.

(3) The term of office of two of the elected members of the first Board of the Administrative Council set up after the entry into force of this Convention shall be five and four years respectively.

Article 160

Appointment of employees during a transitional period

(1) Until such time as the Service Regulations for permanent employees and the conditions of employ­ment of other employees of the European Patent Of­fice have been adopted, the Administrative Council and the President of the European Patent Office, each within their respective powers, shall recruit the necessary employees and shall conclude short-term contracts to that effect. The Administrative Council may lay down general principles in respect of recruit­ment.

(2) During a transitional period, the expiry of which shall be determined by the Administrative Council, the Administrative Council, after consulting the President of the European Patent Office, may appoint as mem­bers of the Enlarged Board of Appeal or of the Boards of Appeal technically or legally qualified members of national courts and authorities of Con­tracting States who may continue their activities in their national courts or authorities. They may be ap­pointed for a term of less than five years, though this shall not be less than one year, and may be reap­pointed.

Article 161

First accounting period

(1) The first accounting period of the Organisation shall extend from the date of entry into force of this Convention to 31 December of the same year. If that date falls within the second half of the year, the ac­counting period shall extend until 31 December of the following year.

(2) The budget for the first accounting period shall be drawn up as soon as possible after the entry into force of this Convention. Until contributions provided for in Article 40 due in accordance with the first budget are received by the Organisation, the Con­tracting States shall, upon the request of and within the limit of the amount fixed by the Administrative Council, make advances which shall be deducted from their contributions in respect of that budget. The advances shall be determined in accordance with the scale referred to in Article 40. Article 39, paragraphs 3 and 4, shall apply mutatis mutandis to the ad­vances.

Article 162

Progressive expansion of the field of activity of the European Patent Office

(1) European patent applications may be filed with the European Patent Office from the date fixed by the Administrative Council on the recommendation of the President of the European Patent Office.

(2) The Administrative Council may, on the recom­men­dation of the President of the European Patent Of­fice, decide that, as from the date referred to in para­graph 1, the processing of European patent ap­plica­tions may be restricted. Such restriction may be in re­spect of certain areas of technology. However, exami­nation shall in any event be made as to whether Euro­pean patent applications can be accorded a date of fil­ing.

(3) If a decision has been taken under paragraph 2, the Administrative Council may not subsequently fur­ther restrict the processing of European patent appli­cations.

(4) Where, as a result of the procedure being re­stricted under paragraph 2, a European patent appli­ca­tion cannot be further processed, the European Patent Office shall communicate this to the applicant and shall point out that he may make a request for conversion. The European patent application shall be deemed to be withdrawn on receipt of such commu­nication.

Article 163

Professional representatives during a transitional period

(1) During a transitional period, the expiry of which shall be determined by the Administrative Council, not­withstanding the provisions of Article 134, para­graph 2, any natural person who fulfils the fol­lowing conditions may be entered on the list of pro­fessional representa­tives:

(a) he must be a national of a Contracting State;

(b) he must have his place of business or employ­ment within the territory of one of the Contracting States;

(c) he must be entitled to represent natural or legal persons in patent matters before the central industrial property office of the Contracting State in which he has his place of business or employment.

(2) Entry shall be effected upon request, accompa­nied by a certificate, furnished by the central industrial property office, which must indicate that the condi­tions laid down in paragraph 1 are fulfilled.

(3) When, in any Contracting State, the entitlement re­ferred to in paragraph 1(c) is not conditional upon the requirement of special professional qualifications, per­sons applying to be entered on the list who act in patent matters before the central industrial property office of the said State must have habitually so acted for at least five years. However, persons whose pro­fessional quali­fication to represent natural or legal persons in patent matters before the central industrial property office of one of the Contracting States is offi­cially recognised in accordance with the regulations laid down by such State shall not be subject to the condition of having ex­ercised the profession. The certificate furnished by the central industrial property office must indicate that the applicant satisfies one of the conditions referred to in the present paragraph.

(4) The President of the European Patent Office may grant exemption from:

(a) the requirement of paragraph 3, first sentence, if the applicant furnishes proof that he has acquired the requisite qualification in another way;

(b) the requirement of paragraph 1(a) in special cir­cumstances.

(5) The President of the European Patent Office shall grant exemption from the requirement of para­graph 1(a) if on 5 October 1973 the applicant fulfilled the requirements of paragraph 1(b) and (c).

(6) Persons having their places of business or em­ployment in a State which acceded to this Convention less than one year before the expiry of the transitional period referred to in paragraph 1 or after the expiry of the transitional period may, under the conditions laid down in paragraphs 1 to 5, during a period of one year calculated from the date of entry into force of the accession of that State, be entered on the list of pro­fessional representatives.

(7) After the expiry of the transitional period, any per­son whose name was entered on the list of profes­sional representatives during that period shall, with­out prejudice to any disciplinary measures taken un­der Article 134, paragraph 8(c), remain thereon or, on request, be restored thereto, provided that he then fulfils the requirement of paragraph 1(b).

Part XII

FINAL PROVISIONS

Article 164

Implementing Regulations and Protocols

(1) The Implementing Regulations, the Protocol on Recognition, the Protocol on Privileges and Immuni­ties, the Protocol on Centralisation and the Protocol on the Interpretation of Article 69 shall be integral parts of this Convention.

(2) In the 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 5April 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 so to be 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

(1) Each Contracting State may, at the time of signa­ture or when depositing its instrument of ratifi­cation or accession, make only the reservations specified in paragraph 2.

(2) Each Contracting State may reserve the right to provide that:

(a) European patents, in so far as they confer pro­tection on chemical, pharmaceutical or food products, as such, shall, in accordance with the provisions ap­plicable to national patents, be ineffective or revoca­ble; this reservation shall not affect protection con­ferred by the patent in so far as it involves a process of manufacture or use of a chemical product or a process of manufacture of a pharmaceutical or food product;

(b) European patents, in so far as they confer protec­tion on agricultural or horticultural processes other than those to which Article 53, sub-paragraph (b), ap­plies, shall, in accordance with the provisions appli­cable to national patents, be ineffective or revo­cable;

(c) European patents shall have a term shorter than twenty years, in accordance with the provisions appli­cable to national patents;

(d) it shall not be bound by the Protocol on Recogni­tion.

(3) Any reservation made by a Contracting State shall have effect for a period of not more than ten years from the entry into force of this Convention. However, where a Contracting State has made any of the reservations referred to in paragraph 2(a) and (b), the Administrative Council may, in respect of such State, extend the period by not more than five years for all or part of any reservation made, if that State submits, at the latest one year before the end of the ten-year period, a reasoned request which satisfies the Administrative Council that the State is not in a position to dispense with that reservation by the ex­piry of the ten‑year period.

(4) Any Contracting State that has made a reserva­tion shall withdraw this reservation as soon as cir­cumstances permit. Such withdrawal shall be made by notification addressed to the Government of the Federal Republic of Germany and shall take effect one month from the date of receipt of such notifica­tion.

(5) Any reservation made in accordance with para­graph 2(a), (b) or (c) shall apply to European patents granted on European patent applications filed during the period in which the reservation has effect. The effect of the reservation shall continue for the term of the patent.

(6) Without prejudice to paragraphs 4 and 5, any reservation shall cease to have effect on expiry of the period referred to in paragraph 3, first sentence, or, if the period is extended, on expiry of the extended pe­riod.

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 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 made in a notification 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 a 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 deemed to be validly constituted unless at least three-quarters of the Contracting States are rep­resented at it. In order to adopt the revised text there must be 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 Administrative Coun­cil was seized of the dispute, 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. Notification of denunciation shall be given to the Government of the Federal Republic of Germany. Denunciation 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, in so far as that State is concerned, as if the Convention in force thereafter were applicable to that State.

(3) The provisions of 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 a former Contract­ing State

(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 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 re­ferred to in paragraph 1 shall, if they have been ap­proved by the Administrative Council, be considered as official texts. In the event of conflict 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) any signature;

(b) the deposit of any instrument of ratification or accession;

(c) any reservation or withdrawal of reservation pur­suant to the provisions of Article 167;

(d) any declaration or notification received pursuant to the provisions of Article 168;

(e) the date of entry into force of this Convention;

(f) any denunciation received pursuant to the provi­sions of 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

Protocol on the Interpretation of Article 69 of the Convention

(adopted at the Munich Diplomatic Conference for the setting up of a European System for the Grant of Patents on 5October 1973)

Article 69 should not be interpreted in the sense that the extent of the protection conferred by a European patent is to be understood as that defined by the strict, literal meaning of the wording used in the claims, the description and drawings being employed only for the purpose of resolving an ambiguity found in the claims. Neither should it be interpreted in the sense that the claims serve only as a guideline and that the actual protection conferred may extend to what, from a consideration of the description and drawings by a person skilled in the art, the patentee has contemplated. On the contrary, it is to be interpreted as defining a position between these extremes which combines a fair protection for the patentee with a reasonable degree of certainty for third parties.

 

PROTOCOL ON JURISDICTION AND THE RECOGNITION OF DECISIONS

IN RESPECT OF THE RIGHT TO THE GRANT OF A EUROPEAN PATENT

(PROTOCOL ON RECOGNITION)

of 5 October 1973

Section I

Jurisdiction

Article 1

(1) The courts of the Contracting States shall, in accordance with Articles 2 to 6, have jurisdiction to de­cide claims, against the applicant, to the right to the grant of a European patent in respect of one or more of the Contracting States designated in the European patent application.

(2) For the purposes of this Protocol, the term “courts” shall include authorities which, under the national law of a Contracting State, have jurisdiction to decide the claims referred to in paragraph 1. Any Contracting State shall notify the European Patent Office of the identity of any authority on which such a jurisdiction is conferred, and the European Patent Office shall in­form the other Contracting States accordingly.

(3) For the purposes of this Protocol, the term “Con­tracting State” refers to a Contracting State which has not excluded application of this Protocol pursuant to Article 167 of the Convention.

Article 2

Subject to Articles 4 and 5, if an applicant for a Euro­pean patent has his residence or principal place of business within one of the Contracting States, pro­ceedings shall be brought against him in the courts of that Contracting State.

Article 3

Subject to Articles 4 and 5, if an applicant for a Euro­pean patent has his residence or principal place of business outside the Contracting States, and if the party claiming the right to the grant of the European patent has his residence or principal place of busi­ness within one of the Contracting States, the courts of the latter State shall have exclusive jurisdiction.

Article 4

Subject to Article 5, if the subject-matter of a Euro­pean patent application is the invention of an em­ployee, the courts of the Contracting State, if any, whose law determines the right to the European pat­ent pursuant to Article 60, paragraph 1, second sen­tence, of the Convention, shall have exclusive juris­diction over proceedings between the employee and the employer.

Article 5

(1) If the parties to a dispute concerning the right to the grant of a European patent have concluded an agreement, either in writing or verbally with written confirmation, to the effect that a court or the courts of a particular Contracting State shall decide on such a dispute, the court or courts of that State shall have exclusive jurisdiction.

(2) However, if the parties are an employee and his employer, paragraph 1 shall only apply in so far as the national law governing the contract of employ­ment allows the agreement in question.

Article 6

In cases where neither Articles 2 to 4 nor Article 5, paragraph 1, apply, the courts of the Federal Repub­lic of Germany shall have exclusive jurisdiction.

Article 7

The courts of Contracting States before which claims referred to in Article 1 are brought shall of their own motion decide whether or not they have jurisdiction pursuant to Articles 2 to 6.

Article 8

(1) In the event of proceedings based on the same claim and between the same parties being brought before courts of different Contracting States, the court to which a later application is made shall of its own motion decline jurisdiction in favour of the court to which an earlier application was made.

(2) In the event of the jurisdiction of the court to which an earlier application is made being challenged, the court to which a later application is made shall stay the proceedings until the other court takes a final de­cision.

Section II

Recognition

Article 9

(1) Subject to the provisions of Article 11, paragraph 2, final decisions given in any Contracting State on the right to the grant of a European patent in respect of one or more of the Contracting States designated in the European patent application shall be recog­nised without requiring a special procedure in the other Contracting States.

(2) The jurisdiction of the court whose decision is to be recognised and the validity of such decision may not be reviewed.

Article 10

Article 9, paragraph 1, shall not be applicable where:

(a) an applicant for a European patent who has not contested a claim proves that the document initiating the proceedings was not notified to him regularly and sufficiently early for him to defend himself; or

(b) an applicant proves that the decision is incom­patible with another decision given in a Contracting State in proceedings between the same parties which were started before those in which the decision to be recognised was given.

Article 11

(1) In relations between any Contracting States the provisions of this Protocol shall prevail over any con­flicting provisions of other agreements on jurisdiction or the recognition of judgments.

(2) This Protocol shall not affect the implementation of any agreement between a Contracting State and a State which is not bound by the Protocol.

 

PROTOCOL ON PRIVILEGES AND IMMUNITIES

OF THE EUROPEAN PATENT ORGANISATION

(PROTOCOL ON PRIVILEGES AND IMMUNITIES)

of 5 October 1973

Article 1

(1) The premises of the Organisation shall be invio­la­ble.

(2) The authorities of the States in which the Organi­sation has its premises shall not enter those prem­ises, except with the consent of the President of the European Patent Office. Such consent shall be as­sumed in case of fire or other disaster requiring prompt protective action.

(3) Service of process at the premises of the Organi­sation and of any other procedural instru­ments re­lating to a cause of action against the Or­ganisation shall not constitute breach of inviolability.

Article 2

The archives of the Organisation and any documents belonging to or held by it shall be inviolable.

Article 3

(1) Within the scope of its official activities the Organisation shall have immunity from jurisdiction and execution, except

(a) to the extent that the Organisation shall have expressly waived such immunity in a particular case;

(b) in the case of a civil action brought by a third party for damage resulting from an accident caused by a motor vehicle belonging to, or operated on be­half of, the Organisation, or in respect of a motor traf­fic offence involving such a vehicle;

(c) in respect of the enforcement of an arbitration award made under Article 23.

(2) The property and assets of the Organisation, wherever situated, shall be immune from any form of requisition, confiscation, expropriation and seques­tration.

(3) The property and assets of the Organisation shall also be immune from any form of administrative or provisional judicial constraint, except in so far as may be temporarily necessary in connection with the prevention of, and investigation into, accidents in­volving motor vehicles belonging to or operated on behalf of the Organisation.

(4) The official activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical opera­tion, as set out in the Convention.

Article 4

(1) Within the scope of its official activities the Or­ganisation and its property and income shall be ex­empt from all direct taxes.

(2) Where substantial purchases for the exercise of its official activities, and in the price of which taxes or duties are included, are made by the Organisation, appropriate measures shall, whenever possible, be taken by the Contracting States to remit or reimburse to the Organisation the amount of such taxes or du­ties.

(3) No exemption shall be accorded in respect of du­ties and taxes which are no more than charges for public utility services.

Article 5

Goods imported or exported by the Organisation for the exercise of its official activities shall be exempt from duties and charges on import or export other than fees or taxes representing services rendered, and from all prohibitions and restrictions on import or export.

Article 6

No exemption shall be granted under Articles 4 and 5 in respect of goods purchased or imported for the personal benefit of the employees of the European Patent Office.

Article 7

(1) Goods belonging to the Organisation which have been acquired or imported under Article 4 or Article 5 shall not be sold or given away except in accor­dance with conditions laid down by the Con­tracting States which have granted the exemptions.

(2) The transfer of goods and provision of services between the various buildings of the Organisation shall be exempt from charges or restrictions of any kind; where appropriate, the Contracting States shall take all the necessary measures to remit or reim­burse the amount of such charges or to lift such re­strictions.

Article 8

The transmission of publications and other informa­tion material by or to the Organisation shall not be re­stricted in any way.

Article 9

The Contracting States shall accord the Organisation the currency exemptions which are necessary for the exercise of its official activities.

Article 10

(1) With regard to its official communications and the transfer of all its documents, the Organisation shall in each Contracting State enjoy the most fa­vourable treatment accorded by that State to any other inter­national organisation.

(2) No censorship shall be applied to official com­mu­nications of the Organisation by whatever means of communication.

Article 11

The Contracting States shall take all appropriate measures to facilitate the entry, stay and departure of the employees of the European Patent Office.

Article 12

(1) Representatives of Contracting States, alternate Representatives and their advisers or experts, if any, shall enjoy, while attending meetings of the Admin­is­trative Council and of any body established by it, and in the course of their journeys to and from the place of meeting, the following privileges and immu­nities:

(a) immunity from arrest or detention and from sei­zure of their personal luggage, except when found committing, attempting to commit, or just having committed an offence;

(b) immunity from jurisdiction, even after the termi­na­tion of their mission, in respect of acts, including words written and spoken, done by them in the exer­cise of their functions; this immunity shall not apply, however, in the case of a motor traffic offence com­mitted by one of the persons referred to above, nor in the case of damage caused by a motor vehicle be­longing to or driven by such a person;

(c) inviolability for all their official papers and docu­ments;

(d) the right to use codes and to receive documents or correspondence by special courier or sealed bag;

(e) exemption for themselves and their spouses from all measures restricting entry and from aliens’ regis­tration formalities;

(f) the same facilities in the matter of currency and exchange control as are accorded to the representa­tives of foreign Governments on temporary official missions.

(2) Privileges and immunities are accorded to the persons referred to in paragraph 1, not for their per­sonal advantage but in order to ensure complete in­dependence in the exercise of their functions in con­nection with the Organisation. Consequently, a Con­tracting State has the duty to waive the immunity in all cases where, in the opinion of that State, such immu­nity would impede the course of justice and where it can be waived without prejudicing the pur­poses for which it was accorded.

Article 13

(1) Subject to the provisions of Article 6, the Presi­dent of the European Patent Office shall enjoy the privileges and immunities accorded to diplomatic agents under the Vienna Convention on Diplomatic Relations of 18 April 1961.

(2) However, immunity from jurisdiction shall not ap­ply in the case of a motor traffic offence committed by the President of the European Patent Office or dam­age caused by a motor vehicle belonging to or driven by him.

Article 14

The employees of the European Patent Office:

(a) shall, even after their service has terminated, have immunity from jurisdiction in respect of acts, in­cluding words written and spoken, done in the exer­cise of their functions; this immunity shall not apply, however, in the case of a motor traffic offence com­mitted by an employee of the European Patent Of­fice, nor in the case of damage caused by a motor vehicle belonging to or driven by an employee;

(b) shall be exempt from all obligations in respect of military service;

(c) shall enjoy inviolability for all their official papers and documents;

(d) shall enjoy the same facilities as regards exemp­tion from all measures restricting immigration and governing aliens’ registration as are normally ac­corded to staff members of international organisa­tions, as shall members of their families forming part of their household;

(e) shall enjoy the same privileges in respect of exchange regulations as are normally accorded to the staff members of international organisations;

(f) shall enjoy the same facilities as to repatriation as diplomatic agents in time of international crises, as shall the members of their families forming part of their household;

(g) shall have the right to import duty-free their fur­ni­ture and personal effects at the time of first taking up their post in the State concerned and the right on the termination of their functions in that State to ex­port free of duty their furniture and personal effects, sub­ject to the conditions considered necessary by the Government of the State in whose territory the right is exercised and with the exception of property acquired in that State which is subject to an export prohibition therein.

Article 15

Experts performing functions on behalf of, or carry­ing out missions for, the Organisation shall enjoy the fol­lowing privileges and immunities, to the extent that they are necessary for the carrying out of their func­tions, including during journeys made in carrying out their functions and in the course of such missions:

(a) immunity from jurisdiction in respect of acts done by them in the exercise of their functions, in­cluding words written or spoken, except in the case of a mo­tor traffic offence committed by an expert or in the case of damage caused by a motor vehicle belong­ing to or driven by him; experts shall continue to en­joy this immunity after they have ceased to be em­ployed by the Organisation;

(b) inviolability for all their official papers and docu­ments;

(c) the exchange facilities necessary for the trans­fer of their remuneration.

Article 16

(1) The persons referred to in Articles 13 and 14 shall be subject to a tax for the benefit of the Organi­sation on salaries and emoluments paid by the Or­ganisation, subject to the conditions and rules laid down by the Administrative Council within a period of one year from the date of the entry into force of the Convention. From the date on which this tax is ap­plied, such salaries and emoluments shall be ex­empt from national income tax. The Contracting States may, however, take into account the salaries and emoluments thus exempt when assessing the amount of tax to be applied to income from other sources.

(2) Paragraph 1 shall not apply to pensions and an­nuities paid by the Organisation to the former em­ployees of the European Patent Office.

Article 17

The Administrative Council shall decide the catego­ries of employees to whom the provisions of Article 14, in whole or in part, and Article 16 shall apply and the categories of experts to whom the provisions of Article 15 shall apply. The names, titles and ad­dresses of the employees and experts included in such categories shall be communicated from time to time to the Contracting States.

Article 18

In the event of the Organisation establishing its own social security scheme, the Organisation and the em­ployees of the European Patent Office shall be ex­empt from all compulsory contributions to national so­cial security schemes, subject to the agreements made with the Contracting States in accordance with the provisions of Article 25.

Article 19

(1) The privileges and immunities provided for in this Protocol are not designed to give to employees of the European Patent Office or experts performing functions for or on behalf of the Organisation per­sonal advantage. They are provided solely to en­sure, in all circumstances, the unimpeded function­ing of the Organisation and the complete independ­ence of the persons to whom they are accorded.

(2) The President of the European Patent Office has the duty to waive immunity where he considers that such immunity prevents the normal course of justice and that it is possible to dispense with such immunity without prejudicing the interests of the Or­ganisation. The Administrative Council may waive immunity of the President for the same reasons.

Article 20

(1) The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regula­tions and regulations concerning public health, la­bour inspection or other similar national legislation, and to prevent any abuse of the privileges, immuni­ties and facilities provided for in this Protocol.

(2) The procedure of co-operation mentioned in para­graph 1 may be laid down in the complementary agree-ments referred to in Article 25.

Article 21

Each Contracting State retains the right to take all precautions necessary in the interests of its security.

Article 22

No Contracting State is obliged to extend the privi­leges and immunities referred to in Article 12, Article 13, Article 14, sub-paragraphs (b), (e) and (g), and Ar­ticle 15, sub-paragraph (c), to:

(a) its own nationals;

(b) any person who at the time of taking up his func­tions with the Organisation has his permanent resi­dence in that State and is not an employee of any other inter-governmental organisation whose staff is incorporated into the Organisation.

Article 23

(1) Any Contracting State may submit to an interna­tional arbitration tribunal any dispute concerning the Organisation or an employee of the European Patent Office or an expert performing functions for or on its behalf, in so far as the Organisation or the employ­ees and experts have claimed a privilege or an im­munity under this Protocol in circumstances where that im­munity has not been waived.

(2) If a Contracting State intends to submit a dis­pute to arbitration, it shall notify the Chairman of the Ad­ministrative Council, who shall forthwith inform each Contracting State of such notification.

(3) The procedure laid down in paragraph 1 of this Article shall not apply to disputes between the Or­ganisation and the employees or experts in respect of the Service Regulations or conditions of employ­ment or, with regard to the employees, the Pension Scheme Regulations.

(4) No appeal shall lie against the award of the arbi­tration tribunal, which shall be final; it shall be bind­ing on the parties. In case of dispute concerning the im­port or scope of the award, it shall be incum­bent upon the arbitration tribunal to interpret it on re­quest by ei­ther party.

Article 24

(1) The arbitration tribunal referred to in Article 23 shall consist of three members, one arbitrator nomi­nated by the State or States party to the arbitration, one arbitrator nominated by the Administrative Coun­cil and a third arbitrator, who shall be the chairman, nominated by the said two arbitrators.

(2) The arbitrators shall be nominated from a panel comprising no more than six arbitrators appointed by each Contracting State and six arbitrators appointed by the Administrative Council. This panel shall be established as soon as possible after the Protocol enters into force and shall be revised each time this proves necessary.

(3) If, within three months from the date of the notifi­cation referred to in Article 23, paragraph 2, ei­ther party fails to make the nomination referred to in para­graph 1 above, the choice of the arbitrator shall, on request of the other party, be made by the Presi­dent of the International Court of Justice from the persons included in the said panel. This shall also apply, when so requested by either party, if within one month from the date of appointment of the sec­ond arbitrator, the first two arbitrators are unable to agree on the nomi­nation of the third arbitrator. How­ever, if, in these two cases, the President of the In­ternational Court of Jus­tice is prevented from making the choice, or if he is a national of one of the States parties to the dispute, the Vice-President of the In­ternational Court of Jus­tice shall make the afore­mentioned appointments, provided that he himself is not a national of one of the States parties to the dis­pute; if such is the case, the member of the Interna­tional Court of Justice who is not a national of one of the States parties to the dis­pute and who has been chosen by the President or Vice-President shall make the appointments. A na­tional of the State ap­plying for arbitration may not be chosen to fill the post of the arbitrator whose ap­pointment devolves on the Administrative Council nor may a person in­cluded in the panel and appointed by the Adminis­trative Council be chosen to fill the post of an arbi­trator whose appointment devolves on the State which is the claimant. Nor may a person of ei­ther of these categories be chosen as chairman of the Tri­bunal.

(4) The arbitration tribunal shall draw up its own rules of procedure.

Article 25

The Organisation may, on a decision of the Admin­is­trative Council, conclude with one or more Con­tract­ing States complementary agreements to give effect to the provisions of this Protocol as regards such State or States, and other arrangements to en­sure the efficient functioning of the Organisation and the safeguarding of its interests.

PROTOCOL ON THE CENTRALISATION OF THE EUROPEAN PATENT SYSTEM AND ON ITS INTRODUCTION

(PROTOCOL ON CENTRALISATION)

of 5 October 1973

Section I

(1)(a) Upon entry into force of the Convention, States parties thereto which are also members of the Inter­national Patent Institute set up by the Hague Agree­ment of 6 June 1947 shall take all necessary steps to ensure the transfer to the European Patent Office no later than the date referred to in Article 162, para­graph 1, of the Convention of all assets and liabilities and all staff members of the Interna­tional Patent In­stitute. Such transfer shall be effected by an agree­ment between the International Patent Institute and the European Patent Organisation. The above States and the other States parties to the Convention shall take all necessary steps to ensure that that agree­ment shall be implemented no later than the date re­ferred to in Article 162, paragraph 1, of the Conven­tion. Upon implementation of the agreement, those Member States of the International Patent Institute which are also parties to the Con­vention further un­dertake to terminate their partici­pation in the Hague Agreement.

(b) The States parties to the Convention shall take all necessary steps to ensure that all the assets and liabilities and all the staff members of the Interna­tional Patent Institute are taken into the European Patent Office in accordance with the agreement re­ferred to in sub-paragraph (a). After the implementa­tion of that agreement the tasks incumbent upon the International Patent Institute at the date on which the Convention is opened for signature, and in particular those carried out vis-à-vis its Member States, whether or not they become parties to the Conven­tion, and such tasks as it has undertaken at the time of the en­try into force of the Convention to carry out vis-à-vis States which, at that date, are both mem­bers of the International Patent Institute and parties to the Con­vention, shall be assumed by the Euro­pean Patent Office. In addition, the Administrative Council of the European Patent Organisation may allocate further duties in the field of searching to the European Patent Office.

(c) The above obligations shall also apply mutatis mutandis to the sub-office set up under the Hague Agreement under the conditions set out in the agreement between the International Patent Institute and the Government of the Contracting State con­cerned. This Government hereby undertakes to make a new agreement with the European Patent Organi­sation in place of the one already made with the In­ternational Patent Institute to harmonise the clauses concerning the organisation, operation and financing of the sub-office with the provisions of this Protocol.

(2) Subject to the provisions of Section III, the States parties to the Convention shall, on behalf of their central industrial property offices, renounce in favour of the European Patent Office any activities as Inter­national Searching Authorities under the Patent Co­operation Treaty as from the date referred to in Arti­cle 162, paragraph 1, of the Convention.

(3)(a) A sub-office of the European Patent Office for searching European patent applications shall be set up in Berlin (West) as from the date referred to in Article 162, paragraph 1, of the Convention. It shall operate under the direction of the branch at The Hague.

(b) The Administrative Council shall determine the duties to be allocated to the sub-office in Berlin in the light of general considerations and of the re­quire­ments of the European Patent Office with regard to searching.

(c) At least at the beginning of the period following the progressive expansion of the field of activity of the European Patent Office, the amount of work as­signed to that sub-office shall be sufficient to enable the ex­amining staff of the Berlin Annex of the Ger­man Pat­ent Office, as it stands at the date on which the Con­vention is opened for signature, to be fully employed.

(d) The Federal Republic of Germany shall bear any additional costs incurred by the European Patent Or­ganisation in setting up and maintaining the sub-of­fice in Berlin.

Section II

Subject to the provisions of Sections III and IV, the States parties to the Convention shall, on behalf of their central industrial property offices, renounce in favour of the European Patent Office any activities as International Preliminary Examining Authorities under the Patent Cooperation Treaty. This obligation shall apply only to the extent to which the European Patent Office may examine European patent appli­cations in accordance with Article 162, paragraph 2, of the Convention and shall not apply until two years after the date on which the European Patent Office has begun examining activities in the areas of tech­nology concerned, on the basis of a five-year plan which shall progressively extend the activities of the Euro­pean Patent Office to all areas of technology and which may be amended only by decision of the Ad­ministrative Council. The procedures for imple­ment­ing this obligation shall be determined by deci­sion of the Administrative Council.

Section III

(1) The central industrial property office of any State party to the Convention in which the official language is not one of the official languages of the European Patent Office, shall be authorised to act as an Inter­national Searching Authority and as an International Preliminary Examining Authority under the Patent Cooperation Treaty. Such authorisation shall be sub­ject to an undertaking by the State concerned to re­strict such activities to international applications filed by nationals or residents of such State and by nation­als or residents of States parties to the Con­vention which are adjacent to that State. The Ad­ministrative Council may decide to authorise the central industrial property office of any State party to the Convention to extend such activities to cover such international ap­plications as may be filed by nationals or residents of any non-Contracting State having the same official language as the Contracting State in question and drawn up in that language.

(2) For the purpose of harmonising search activities under the Patent Cooperation Treaty within the framework of the European system for the grant of patents, co-operation shall be established between the European Patent Office and any central industrial property office authorised under this Section. Such co-operation shall be based on a special agreement which may cover e.g. search procedures and meth­ods, qualifications required for the recruitment and training of examiners, guidelines for the exchange of search and other services between the offices as well as other measures needed to establish the re­quired control and supervision.

Section IV

(1)(a) For the purpose of facilitating the adaptation of the national patent offices of the States parties to the Convention to the European patent system, the Administrative Council may, if it considers it desirable, and subject to the conditions set out below, entrust the cen­tral industrial property offices of such of those States in which it is possible to conduct the pro­ceed­ings in one of the official languages of the European Patent Office with tasks concerning the examination of European patent applications drawn up in that lan­guage which, pursuant to Article 18, paragraph 2, of the Convention, shall, as a general rule, be entrusted to a member of the Examining Di­vision. Such tasks shall be carried out within the framework of the pro­ceedings for grant laid down in the Convention; decisions on such applications shall be taken by the Examining Di­vision composed in ac­cor­dance with Article 18, para­graph 2.

(b) Tasks entrusted under sub-paragraph (a) shall not be in respect of more than 40% of the total num­ber of European patent applications filed; tasks en­trusted to any one State shall not be in respect of more than one-third of the total number of European patent applications filed. These tasks shall be en­trusted for a period of 15 years from the opening of the European Patent Office and shall be reduced progressively (in principle by 20% a year) to zero during the last 5 years of the period.

(c) The Administrative Council shall decide, while taking into account the provisions of sub-paragraph (b), upon the nature, origin and number of the Euro­pean patent applications in respect of which exam­in­ing tasks may be entrusted to the central industrial property office of each of the Contracting States mentioned above.

(d) The above implementing procedures shall be set out in a special agreement between the central in­dustrial property office of the Contracting State con­cerned and the European Patent Organisation.

(e) An office with which such a special agreement has been concluded may act as an International Pre­liminary Examining Authority under the Patent Coop­eration Treaty, until the expiry of the period of 15 years.

(2)(a) If the Administrative Council considers that it is compatible with the proper functioning of the Euro­pean Patent Office, and in order to alleviate the diffi­culties which may arise for certain Contracting States from the application of Section I, paragraph 2, it may entrust searching in respect of European pat­ent ap­plications to the central industrial property of­fices of those States in which the official language is one of the official languages of the European Patent Office, provided that these offices possess the nec­essary qualifications for appointment as an Interna­tional Searching Authority in accordance with the conditions laid down in the Patent Cooperation Treaty.

(b) In carrying out such work, undertaken under the responsibility of the European Patent Office, the cen­tral industrial property offices concerned shall adhere to the guidelines applicable to the drawing up of the European search report.

(c) The provisions of paragraph 1(b), second sen­tence, and sub-paragraph (d) of this Section shall ap­ply to this paragraph.

Section V

(1) The sub-office referred to in Section I, paragraph 1(c), shall be authorised to carry out searches, among the documentation which is at its disposal and which is in the official language of the State in which the sub-office is located, in respect of Euro­pean pat­ent applications filed by nationals and resi­dents of that State. This authorisation shall be on the under­standing that the procedure for the grant of European patents will not be delayed and that addi­tional costs will not be incurred for the European Patent Organi­sation.

(2) The sub-office referred to in paragraph 1 shall be authorised to carry out, at the option of an appli­cant for a European patent and at his expense, a search on his patent application among the docu­mentation referred to in paragraph 1. This authorisa­tion shall be effective until the search provided for in Article 92 of the Convention has been extended, in accordance with Section VI, to cover such documen­tation and shall be on the understanding that the pro­cedure for the grant of European patents will not be delayed.

(3) The Administrative Council may also extend the authorisations provided for in paragraphs 1 and 2, under the conditions of those paragraphs, to the cen­tral industrial property office of a Contracting State which does not have as an official language one of the official languages of the European Patent Office.

Section VI

The search provided for in Article 92 of the Conven­tion shall, in principle, be extended, in respect of all European patent applications, to published patents, published patent applications and other relevant documents of Contracting States not included in the search documentation of the European Patent Office on the date referred to in Article 162, paragraph 1, of the Convention. The extent, conditions and timing of any such extension shall be determined by the Ad­ministrative Council on the basis of a study con­cern­ing particularly the technical and financial as­pects.

Section VII

The provisions of this Protocol shall prevail over any contradictory provisions of the Convention.

Section VIII

The decisions of the Administrative Council provided for in this Protocol shall require a three-quarters ma­jority (Article 35, paragraph 2, of the Convention). The pro-visions governing the weighting of votes (Ar­ticle 36 of the Convention) shall apply.

 

Implementing regulations

to the Convention on the grant of European Patents

of 5 October 1973 as last amended by Decision of the Administrative Council

of the European Patent Organisation of 13 December 2001

Part I

IMPLEMENTING REGULATIONS TO PART I OF THE CONVENTION

Chapter I

Languages of the European Patent Office

Rule 1

Derogations from the provisions concerning the language of the proceedings 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 must be filed in the language of the proceedings.

(3) Documents to be used for purposes of evidence before the European Patent Office, and particularly publications, may be filed in any language. The Euro­pean Patent Office may, however, require that a trans­lation be filed, within a given time limit of not less than one month, in one of its official languages.

Rule 2

Derogations from the provisions concerning the language of the proceedings in oral proceedings

(1) Any party to oral proceedings before the Euro­pean Patent Office may, in lieu of the language of the pro­ceedings, use one of the other official languages of the European Patent Office, on condition either that such party gives notice to the European Patent Office at least one month before the date laid down for such oral proceedings or makes provision for in­terpreting into the language of the proceedings. Any party may like­wise use one of the official languages of the Con­tract­ing States, on condition that he makes provision for interpretation into the language of the proceedings. The European Patent Office may permit derogations from the provisions of this paragraph.

(2) In the course of oral proceedings, the employees of the European Patent Office may, in lieu of the lan­guage of the proceedings, use one of the other offi­cial languages of the European Patent Office.

(3) In the case of taking of evidence, any party to be heard, witness or expert who is unable to express him­self adequately in one of the official languages of the European Patent Office or the Contracting States may use another language. Should the taking of evi­dence be decided upon following a request by a party to the proceedings, parties to be heard, witnesses or experts who express themselves in languages other than the official languages of the European Patent Of­fice may be heard only if the party who made the re­quest makes provision for interpretation into the lan­guage of the proceedings; the European Patent Office may, how­ever, authorise interpretation into one of its other offi­cial languages.

(4) If the parties and the European Patent Office agree, any language may be used in oral proceed­ings.

(5) The European Patent Office shall, if necessary, make provision at its own expense for interpretation into the language of the proceedings, or, where ap­pro­priate, into its other official languages, unless this in­terpretation is the responsibility of one of the parties to the proceedings.

(6) Statements by employees of the European Pat­ent Office, by parties to the proceedings and by wit­nesses and experts, made in one of the official lan­guages of the European Patent Office during oral proceedings shall be entered in the minutes in the lan­guage em­ployed. Statements made in any other lan­guage shall be entered in the official language into which they are translated. Amendments to the text of the description or claims of a European patent appli­cation or Euro­pean patent shall be entered in the min­utes in the lan­guage of the proceedings.

Rule 3

(deleted)

Rule 4

Language of a European divisional application

European divisional applications or, in the case re­ferred to in Article 14, paragraph 2, the translations thereof, must be filed in the language of the proceed­ings for the earlier European patent application.

Rule 5

Certification of translations

When a translation of any document must be filed, the European Patent Office may require the filing of a cer­tificate that the translation corresponds to the original text within a period to be determined by it. Failure to file the certificate in due time shall lead to the docu­ment being deemed not to have been re­ceived unless the Convention provides otherwise.

Rule 6

Time limits and reduction of fees

(1) The translation referred to in Article 14, para­graph 2, must be filed within three months after the filing of the European patent application, but no later than thir­teen months after the date of priority. Never­the­less, if the translation concerns a European divi­sional applica­tion or a new European patent appli­cation un­der Arti­cle 61, paragraph 1(b), the transla­tion may be filed at any time within one month of the filing of such applica­tion.

(2) The translation referred to in Article 14, para­graph 4, must be filed within one month of the filing of the document. Where the document is a notice of op­posi­tion or an appeal, this period shall be extended where appropriate to the end of the opposition period or ap­peal period.

(3) A reduction in the filing fee, examination fee, oppo­sition fee or appeal fee shall be allowed an ap­plicant, proprietor or opponent, as the case may be, who avails himself of the options provided in Article 14, paragraphs 2 and 4. The reduction shall be fixed in the Rules relating to Fees at a percentage of the total of the fees.

Rule 7

Legal authenticity of the translation of the European patent application

Saving proof to the contrary, the European Patent Of­fice may, for the purposes of determining whether the subject-matter of the European patent application or European patent extends beyond the content of the European patent application as filed, assume that the translation referred to in Article 14, paragraph 2, is in conformity with the original text of the application.

Chapter II

Organisation of the European Patent Office

Rule 8

Patent classification

(1) The European Patent Office shall use:

(a) the classification referred to in Article 1 of the European Convention on the International Classifica­tion of Patents for Invention of 19 December 1954 until the entry into force of the Strasbourg Agreement con­cerning the International Patent Classification of 24 March 1971;

(b) the classification referred to in Article 1 of the aforementioned Strasbourg Agreement, after the en­try into force of that Agreement.

(2) The classification referred to in paragraph 1 is hereinafter referred to as the international classifica­tion.

Rule 9

Allocation of duties to the departments of the first instance

(1) The President of the European Patent Office shall determine the number of Search Divisions, Ex­amining Divisions and Opposition Divisions. He shall allocate duties to these departments by reference to the inter­national classification and shall decide where neces­sary on the classification of a European patent appli­cation or a European patent in accordance with that classification.

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

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

(4) The President of the European Patent Office may grant exclusive responsibilities to one of the registries of the Opposition Divisions for fixing the amount of costs as provided for in Article 104, para­graph 2.

Rule 10

Presidium of the Boards of Appeal

(1) The autonomous authority within the organisa­tional unit comprising the Boards of Appeal (the “Pre­sidium of the Boards of Appeal”) shall consist of the Vice-President in charge 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 one working year. 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 adopt the Rules of Proce­dure of the Boards of Appeal and the Rules of Proce­dure for the election and designation of its members. The Presidium shall further advise the Vice-President in charge of the Boards of Appeal with regard to matters concerning the functioning of the Boards of Appeal 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 Vice-President in charge 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 Vice-President in charge 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.

(6) The Administrative Council may allocate duties under Article134, paragraph 8(c), to the Boards of Ap­peal.

Rule 11

Business distribution scheme for the Enlarged Board of Appeal and adoption of its Rules of Procedure

(1) Before the beginning of each working year, the members of the Enlarged Board of Appeal who have not been appointed under Article 160, paragraph 2, shall designate the regular and alternate members of the Enlarged Board of Appeal.

(2) The members of the Enlarged Board of Appeal who have not been appointed under Article 160, para­graph 2, shall adopt the Rules of Procedure of the Enlarged Board of Appeal.

(3) Decisions on matters mentioned in paragraphs 1 and 2 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.

Rule 12

Administrative structure of the European Patent Office

(1) The Examining Divisions and the Opposition Divi­sions shall be grouped together administratively so as to form Directorates, the number of which shall be laid down by the President of the European Patent Office.

(2) The Directorates, the Legal Division, the Boards of Appeal and the Enlarged Board of Appeal, and the administrative services of the European Patent Office shall be grouped together administratively so as to form Directorates-General. The Receiving Section and the Search Divisions shall be grouped together admin­istratively so as to form a Directorate-General.

(3) Each Directorate-General shall be directed by a Vice-President. The appointment of a Vice-President to a Directorate-General shall be decided upon by the Administrative Council, after the President of the Euro­pean Patent Office has been consulted.

Part II

IMPLEMENTING REGULATIONS TO PART II OF THE CONVENTION

Chapter I

Procedure where the applicant or proprietor is not entitled

Rule 13

Suspension of proceedings

(1) If a third party provides proof to the European Patent Office that he has opened proceedings against the applicant for the purpose of seeking a judgment that he is entitled to the grant of the Euro­pean patent, the European Patent Office shall stay the proceedings for grant unless the third party con­sents to the con­tinuation of such proceedings. Such consent must be communi­cated in writing to the European Patent Of­fice; it shall be irrevocable. How­ever, proceedings for grant may not be stayed before the publication of the European patent application.

(2) Where proof is provided to the European Patent Office that a decision which has become final has been given in the proceedings concerning entitlement to the grant of the European patent, the European Patent Office shall communicate to 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 pursu­ant to 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 only be resumed after a period of three months of that de­ci­sion becoming fi­nal unless the third party requests the resumption of the proceedings for grant.

(3) When giving a decision on the suspension of pro­ceedings or thereafter the European Patent Office may set a date on which it intends to continue the pro­ceed­ings pending before it regardless of the stage reached in the proceedings referred to in paragraph 1 opened against the applicant. The date is to be com­municated to the third party, the applicant and any other party. If no proof has been provided by that date that a deci­sion which has become final has been given, the Euro­pean Patent Office may continue pro­ceedings.

(4) If a third party provides proof to the European Pat­ent Office during opposition proceedings or during the opposition period that he has opened proceed­ings against the proprietor of the European patent for the purpose of seeking a judgment that he is entitled to the European patent, the European Patent Office shall stay the opposition proceedings unless the third party con­sents to the continuation of such proceed­ings. Such comment must be communicated in writ­ing to the European Patent Office; it shall be irrevo­cable. How­ever, the suspension of the proceedings may not be ordered until the Opposition Division has deemed the opposition admissible. Paragraphs 2 and 3 shall apply mutatis mutandis.

(5) The time limits in force at the date of suspension other than time limits for payment of renewal fees shall be interrupted by such suspension. The time which has not yet elapsed shall begin to run as from the date on which proceedings are resumed; how­ever, the time still to run after the resumption of the pro­ceedings shall not be less than two months.

Rule 14

Limitation of the option to withdraw the European patent application

As from the time when a third party proves to the European Patent Office that he has initiated proceed­ings concerning entitlement and up to the date on which the European Patent Office resumes the pro­ceedings for grant, neither the European patent appli­cation nor the designation of any Contracting State may be with­drawn.

Rule 15

Filing of a new European patent application by the person entitled to apply

(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 pursuant to Article 61, paragraph 1(b), the original European patent ap­plica­tion shall be deemed to be withdrawn on the date of filing of the new application for the Contract­ing States designated therein in which the decision has been taken or recognized.

(2) The filing fee and search fee shall be payable in respect of the new European patent application within one month after the filing thereof. The designation fees shall be payable 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 European patent application.

(3) The time limits for forwarding European patent applications provided for in Article 77, paragraphs 3 and 5, shall, for the new European patent application, be four months as from the actual filing date of that appli­cation.

Rule 16

Partial transfer of right by virtue of a final decision

(1) If by a final decision it is adjudged that a third party is entitled to the grant of a European patent in respect of only part of the matter disclosed in the European patent application, Article 61 and Rule 15 shall apply mutatis mutandis 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 recognized, claims, a description and drawings which are dif­ferent from those for the other designated Con­tracting States.

(3) Where a third party has, in accordance with Arti­cle 99, paragraph 5, replaced the previous proprietor for one or some of the designated Contracting States, the patent as maintained in opposition proceedings may contain for these States claims, a description and drawings which are different from those for the other designated Contracting States.

Chapter II

Mention of the inventor

Rule 17

Designation of the inventor

(1) The designation of the inventor shall be filed in the request for the grant of a European patent. 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 must state the family name, given names and full address of the inventor and the statement referred to in Article 81 and shall 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 inform the designated inventor of the data in the document desig­nating him and the further data mentioned in Ar­ticle 128, paragraph 5.

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

Rule 18

Publication of the mention of the inventor

(1) The person designated as the inventor shall be mentioned as such in the published European patent application and the European patent specification, unless the said person informs the European Patent Office in writing that he waives his right to be thus mentioned.

(2) In the event of a third party filing with the Euro­pean Patent Office a final decision whereby the appli­cant for or proprietor of a patent is required to desig­nate him as the inventor, the provisions of para­graph1 shall ap­ply.

Rule 19

Rectification of the designation of an inventor

(1) An incorrect designation of an inventor may not be rectified save upon request, accompanied by the con­sent of the wrongly designated person and, in the event of such request not being filed by the applicant for or proprietor of the European patent, by the con­sent of that party. The provisions of Rule 17 shall ap­ply muta­tis mutandis.

(2) In the event of an incorrect mention of the inven­tor having been entered in the Register of European Pat­ents or published in the European Patent Bulletin such entry or publication shall be corrected.

(3) Paragraph 2 shall apply mutatis mutandis to the cancellation of an incorrect designation of the inven­tor.

Chapter III

Registering transfers, licences and other rights

Rule 20

Registering a transfer

(1) A transfer of a European patent application shall be recorded in the Register of European Patents at the request of an interested party and on production of documents satisfying the European Patent Office that the transfer has taken place.

(2) The request shall not be deemed to have been filed until such time as an administrative fee has been paid. It may be rejected only in the event of failure to comply with the conditions laid down in paragraph 1.

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

Rule 21

Registering of licences and other rights

(1) Rule 20, 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 of such an application.

(2) The registration referred to in paragraph 1 shall be cancelled upon request, which shall not be deemed to have been filed until an administrative fee has been paid. Such request shall be supported ei­ther by docu­ments establishing that the right has lapsed, or by a declaration whereby the proprietor of the right con­sents to the cancellation of the registra­tion; it may be re­jected only if these conditions are not fulfilled.

Rule 22

Special indications for the registration of a licence

(1) A licence in respect of a European patent applica­tion shall be recorded in the Register of Euro­pean Patents as an exclusive licence if the applicant and the li­censee so require.

(2) A licence in respect of a European patent applica­tion shall be recorded in the Register of Euro­pean Patents as a sub-licence where it is granted by a licensee whose licence is recorded in the said Regis­ter.

Chapter IV

Certification of exhibition

Rule 23

Certificate of exhibition

The applicant must, within four months of the filing of the European patent application, file the certificate re­ferred to in Article 55, paragraph 2, issued at the exhi­bition by the authority responsible for the protection of industrial property at that exhibition, and stating that the invention was in fact exhibited there. This certifi­cate shall also state the opening date of the exhibition and, where the first disclosure of the invention did not coin­cide with the opening date of the exhibition, the date of the first disclosure. This certificate must be accompa­nied by an identification of the invention, duly authenti­cated by the above-mentioned authority.

Chapter V

Prior European applications

Rule 23a

Prior application as state of the art

A European patent application shall be considered as comprised in the state of the art under Article 54, para­graphs 3 and 4, only if the designation fees un­der Arti­cle 79, paragraph 2, have been validly paid.

Chapter VI

Biotechnological inventions

Rule 23b

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 6July 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 23c

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) 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 23d

Exceptions to patentability

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.

Rule 23e

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.

Part III

IMPLEMENTING REGULATIONS TO PART III OF THE CONVENTION

Chapter I

Filing of the European patent application

Rule 24

General provisions

(1) European patent applications may be filed in writ­ing with the authorities referred to in Article 75 either di­rectly or by post. The President of the Euro­pean Pat­ent Office may permit European patent ap­plica­tions to be filed by other means of communica­tion and lay down conditions governing their use. He may, in par­ticular, require that within such period as the European Patent Office shall specify written con­fir­mation be sup­plied reproducing the contents of appli­cations so filed and complying with the require­ments of these Imple­menting Regulations.

(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. It shall is­sue without delay a receipt to the applicant which shall in­clude at least the application number, the nature and number of the documents and the date of their receipt.

(3) If the European patent application is filed with an authority mentioned in Article 75, paragraph 1(b), it shall without delay inform the European Patent Office of receipt of the documents making up the applica­tion. It shall inform the European Patent Office of the na­ture and date of receipt of the documents, the ap­pli­cation number and any priority date claimed.

(4) When the European Patent Office has received a European patent application which has been for­warded by a central industrial property office of a Contracting State, it shall inform the applicant ac­cordingly, indicat­ing the date of its receipt at the European Patent Of­fice.

Rule 25

Provisions for European divisional applications

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

(2) The filing fee and search fee shall be payable in re­spect of a European divisional application within one month after the filing thereof. The designation fees shall be payable 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 European divisional application.

Chapter II

Provisions governing the application

Rule 26

Request for grant

(1) The request for the grant of a European patent shall be filed on a form drawn up by the European Pat­ent Office. Printed forms shall be made available to applicants free of charge by the authorities re­ferred to in Article 75, paragraph 1.

(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 and given name(s), the family name being indicated before the given name(s).Names of legal entities, as well as companies considered to be legal entities by reason of the legisla­tion to which they are subject, shall be in­dicated by their official designations. Addresses shall be indicated in such a way as to satisfy the customary requirements for prompt postal deliv­ery at the indi­cated address. They shall in any case comprise all the relevant ad­ministrative units, includ­ing the house num­ber, if any. It is recom-mended that the telegraphic and telex address and telephone number be indicated;

(d) if the applicant has appointed a representative, his name and the address of his place of business under the conditions contained in sub-paragraph (c);

(e) where appropriate, indication that the application constitutes a European 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) designation of the Contracting State or States in which protection of the invention is desired;

(i) the signature of the applicant or his representa­tive;

(j) 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;

(k) 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 27

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 known to the applicant, can be regarded as useful for under­standing the invention, for drawing up the Euro­pean search report and for the examination, 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 capable of exploitation in in­dustry.

(2) The description shall be presented in the man­ner and order specified in paragraph 1, unless be­cause of the nature of the invention, a different man­ner or a dif­ferent order would afford a better under­standing and a more economic presentation.

Rule 27a

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) The President of the European Patent Office may require that, in addition to the written application docu­ments, a sequence listing in accordance with paragraph 1 be submitted on a data carrier pre­scribed by him ac­companied by a statement that the informa­tion re­corded on the data carrier is identical to the written se­quence listing.

(3) If a sequence listing is filed or corrected after the date of filing, the applicant shall submit a statement that the sequence listing so filed or corrected does not in­clude matter which goes beyond the content of the ap­plication as filed.

(4) A sequence listing filed after the date of filing shall not form part of the description.

Rule 28

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 Article83 if:

(a) a sample of the biological material has been de-posited with a recognized depositary institution 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 satisfying the European Pat­ent Office that the latter has authorized 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 this Rule.

(2) The information referred to in paragraph1(c) and, where applicable, (d) may be submitted

(a) within a period of sixteen months after the date of filing of the application or, if priority is claimed, after the priority date, this time limit being deemed to have been met 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 for early publication of the application;

(c) within one month after the European Patent Of­fice has communicated to the applicant that a right to in­spect the files pursuant to 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 this Rule.

(3) The deposited biological material 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 pursuant to Arti­cle128, paragraph2, prior to that date. Subject to paragraph4, 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”).

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 expiry of the patent in the desig­nated State in which it last expires, 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.

(4) Until completion of the technical preparations for publication of the 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 has been refused or withdrawn or deemed to be withdrawn, the availability referred to in paragraph3 shall be effected only by the issue of a sample to an expert nominated by the requester.

(5) The following may be nominated as an expert:

(a) any natural person provided that the requester fur­nishes evidence, when filing the request, that the nomi­nation has the approval of the applicant;

(b) any natural person recognized as an expert by the President of the European Patent Office.

The nomination shall be accompanied by a declara­tion from the expert vis-à-vis the applicant in which he en­ters into the undertaking given pursuant to para­graph3 until either the date on which the patent ex­pires in all the designated States or, where the appli­cation has been refused, withdrawn or deemed to be withdrawn, until the date referred to in para­graph4(b), the requester being regarded as a third party.

(6) For the purposes of paragraph 3, 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 referred to in paragraph 3 shall not impede any deposit of derived biological material necessary for the purpose of patent procedure.

(7) The request provided for in paragraph3 shall be submitted to the European Patent Office on a form recognized 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 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.

(8) The European Patent Office shall transmit a copy of the request, with the certification provided for in paragraph 7, to the depositary institution as well as to the applicant for or the proprietor of the patent.

(9) The President of the European Patent Office shall publish in the Official Journal of the European Patent Office the list of depositary institutions and experts recognized for the purpose of this Rule.

Rule 28a

New deposit of biological material

(1) If biological material deposited in accordance with Rule28, paragraph1, ceases to be available from the institution with which it was deposited be­cause:

(a) the biological material is no longer viable, or

(b) for any other reason the depositary institution is un­able to supply samples,

and if no sample of the biological material has been transferred to another depositary institution recognized for the purposes of Rule28, from which it con­tinues to be available, an interruption in availability shall be deemed not to have occurred if a new de­posit of the biological material originally deposited is made within a period of three months from the date on which the de­positor was notified of the interruption by the deposi­tary institution and if a copy of the re­ceipt of the de­posit issued by the institution is for­warded to the Euro­pean Patent Office within four months from the date of the new deposit stating the number of the application or of the European patent.

(2) In the case provided for in paragraph 1(a), the new deposit shall be made with the depositary insti­tution with which the original deposit was made; in the cases provided for in paragraph 1(b), it may be made with another depositary institution recognized for the pur­poses of Rule 28.

(3) Where the institution with which the original deposit was made ceases to be recognized for the pur­poses of Rule28, either entirely or for the kind of biological material to which the deposited sample belongs, or where that institution discontinues, tem­porarily or de­finitively, the performance of its func­tions as regards deposited biological material, and the notification re­ferred to in paragraph 1 from the depositary institution is not received within six months from the date of such event, the three-month period referred to in paragraph 1 shall begin on the date on which this event is an­nounced in the Official Journal of the European Patent Office.

(4) Any new deposit shall be accompanied by a state­ment signed by the depositor certifying that the newly deposited biological material is the same as that origi­nally deposited.

(5) If the new deposit has been made under the provi­sions of the Budapest Treaty on the Interna­tional Rec­ognition of the Deposit of Microorganisms for the Pur­poses of Patent Procedure of 28 April 1977, the provi­sions of that Treaty shall prevail.

Rule 29

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, are part of the prior art;

(b) a characterising portion - preceded by the expres­sion “characterised in that” or “characterised by” - stat­ing the technical features which, in combi­nation with the features stated in sub-paragraph (a), it is desired to protect.

(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 inter‑related products;

(b) different uses of a product or apparatus;

(c) alternative solutions to a particular problem, where it is not appropriate 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 which it is desired to protect. A dependent claim shall also be admissible where the claim it directly refers to is itself a depend­ent claim. 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 the claims shall be reasonable in consideration of the nature of the invention claimed. If there are several claims, they shall be numbered con­secutively in Arabic numerals.

(6) Claims shall not, except where absolutely neces­sary, rely, in respect of the technical features of the in­vention, on references to the description or draw­ings. In particular, they shall not rely on such refer­ences as: “as described in part ... of the descrip­tion”, or “as illus­trated in figure ... of the drawings”.

(7) If the European patent application contains draw­ings, the technical features mentioned in the claims shall preferably, if the intelligibility of the claim can thereby be increased, be followed by reference signs relating to these features and placed between paren­theses. These reference signs shall not be construed as limiting the claim.

Rule 30

Unity of invention

(1) Where a group of inventions is claimed in one and the same European patent application, the re­quire­ment of unity of invention referred to in 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 31

Claims incurring fees

(1) Any European patent application comprising more than ten claims at the time of filing shall, in respect of each claim over and above that number, in­cur pay­ment of a claims fee. The claims fee shall be payable within one month after the filing of the appli­cation. If the claims fees have not been paid in due time they may still be validly paid within a period of grace of one month of notification of a communica­tion pointing out the failure to observe the time limit.

(2) If a claims fee is not paid within the period re­ferred to in paragraph 1, the claim concerned shall be deemed to be abandoned. Any claims fee duly paid shall be refunded only in the case referred to in Article 77, paragraph 5.

Rule 32

Form of the drawings

(1) On sheets containing drawings, the usable sur­face area shall not exceed 26.2cm x 17 cm. These sheets shall not contain frames round the usable or used sur­face. 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 in durable, black, suffi­ciently dense and dark, uniformly thick and well-defined, lines and strokes without colourings.

(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 the distinctness of their graphical execution shall be such that repro­duc­tion, obtained electronically or photographically, with a linear reduction in size to two-thirds would en­able all details to be distinguished without difficulty. If, as an exception, 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) All lines in the drawings shall, ordinarily, be drawn with the aid of drafting instruments.

(f) Elements of the same figure shall be in propor­tion to each other, 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 one whole 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. The same features, when denoted by ref­erence signs, shall, throughout the application, be denoted by the same signs.

(j) The drawings shall not contain text matter, except, when absolutely indispensable, a single word or words such as “water”, “steam”, “open”, “closed”, “section on AB”, and, in the case of electric circuits and block schematic or flow sheet diagrams, a few short catch­words indispensable for understanding. Any such words 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 are considered draw­ings.

Rule 33

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 way which allows 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 its speculative application.

(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 he suggests should accompany the abstract when the abstract is published. The European Patent Office may decide to publish one or more other figures if it considers that they better characterise the invention. Each main fea­ture mentioned in the abstract and illustrated by a drawing shall be followed by a refer­ence sign, placed between parentheses.

(5) The abstract shall be so drafted that it consti­tutes an efficient instrument for purposes of search­ing in the particular technical field particularly by mak­ing it possi­ble to assess whether there is a need for con­sulting the European patent application itself.

Rule 34

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 particular person other than the appli­cant, or the merits or validity of applications or patents of any such person. 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 a European patent application contains prohibited matter within the meaning of paragraph 1(a), the Euro­pean Patent Office shall omit it when publishing the ap­plication, indicating the place and number of words or drawings omitted.

(3) If a European patent application contains state­ments within the meaning of paragraph 1(b), the Euro­pean Patent Office may omit them when pub­lishing the application. It shall indicate the place and number of words omitted, and shall furnish, upon re­quest, a copy of the passages omitted.

Rule 35

General provisions governing the presentation of the application documents

(1) Translations mentioned in Article 14, paragraph 2, shall be considered to be included in the term “docu­ments making up the European patent applica­tion”.

(2) The documents making up the European patent ap­plication shall be filed in three copies. The Presi­dent of the European Patent Office may, however, deter­mine that the documents shall be filed in fewer than three copies.

(3) The documents making up the European patent ap­plication shall be so presented as to admit of elec­tronic as well as of direct reproduction, in particular by scan­ning, photography, electrostatic processes, photo off­set and micro filming, 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.

(4) The documents making up the European patent ap­plication shall be on A 4 paper (29.7 cm x 21 cm) which shall be pliable, strong, white, smooth, matt and dura­ble. Subject to the provisions of Rule 32, para­graph 2(h), and paragraph 11 of this Rule, each sheet shall be used with its short sides at the top and bottom (upright position).

(5) Each of the documents making up the European patent 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.

(6) Subject to Rule 32, 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

(7) The margins of the documents making up the Euro­pean patent application, when submitted, must be completely blank.

(8) All the sheets contained in the European patent ap­plication shall be numbered in consecutive Arabic nu­merals. These shall be placed at the top of the sheet, in the middle, but not in the top margin.

(9) 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.

(10) The request for the 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 written by hand or drawn. The typing shall be 1 ½ 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.

(11) The request for the grant of a European patent, the description, the claims and the abstract shall not contain drawings. The description, the claims and the abstract may contain chemical or mathematical for­mu­lae. The description and the 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 thereon; sheets on which tables or chemical or mathematical formulae arepresented sideways shall be so presented that the tops of the tables or formu­lae are at the left side of the sheet.

(12) Physical values shall be expressed in the units recognized in international practice, wherever appro­priate in terms of the metric system using SI units. Any data not meeting this requirement must also be ex­pressed in the units recognized in international prac­tice. For mathe­matical formulae the symbols in general use shall be employed. For chemical formulae the symbols, atomic weights and molecular formulae in general use shall be employed. In general, use should be made of the technical terms, signs and symbols generally accepted in the field in question.

(13) The terminology and the signs shall be consis­tent throughout the European patent application.

(14) Each sheet shall be reasonably free from erasures and shall be free from alterations, overwritings and interlineations. Non-compliance with this rule may be authorized if the authenticity of the content is not in question and the requirements for good repro­duction are not in jeopardy.

Rule 36

Documents filed subsequently

(1) Rules 27, 29 and 32 to 35 shall apply to docu­ments replacing documents making up the European patent application. Rule 35, paragraphs 2 to 14, shall also apply to the translation of the claims referred to in Rule 51.

(2) All documents other than those referred to in the first sentence of paragraph 1 shall normally be type­written or printed. There must be a margin of about 2.5 cm on the left-hand side of each page.

(3) All documents, with the exception of annexed documents, filed after filing of the European patent ap­plication must be signed. 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 laid down by that Office. If signed in due time, the docu­ment shall retain its original date of receipt; oth­erwise it shall be deemed not to have been received.

(4) Such documents as must be communicated to other persons or as relate to two or more European patent applications or European patents, must be filed in a sufficient number of copies. If the party con­cerned does not comply with this obligation in spite of a re­quest by the European Patent Office, the missing copies shall be provided at the expense of the party concerned.

(5) Notwithstanding paragraphs 2 to 4 the President of the European Patent Office may permit documents filed after filing of the European patent application to be transmitted to the European Patent Office by other means of communication and lay down condi­tions governing their use. He may, in particular, require that within a period laid down by him written confirmation be supplied reproducing the contents of documents so filed and complying with the require­ments of these Im­plementing Regulations; if such confirmation is not supplied in due time, the docu­ments shall be deemed not to have been received.

Chapter III

Renewal fees

Rule 37

Payment of renewal fees

(1) Renewal fees 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 one year before they fall due.

(2) An additional fee shall be deemed to have been paid at the same time as the renewal fee within the meaning of Article 86, paragraph 2, if it is paid within the period laid down in that provision.

(3) Renewal fees already due in respect of an earlier application up to the date on which a European divi­sional application is filed must also be paid for the di­vi­sional application and fall due when the latter is filed. These fees and any renewal fee falling due within a pe­riod of four months from the filing of the divisional ap­plication may be paid without an addi­tional fee within that period. If payment is not made in due time, the re­newal fees may still be validly paid within six months of the due date, provided that the additional fee under Ar­ticle 86, paragraph 2, is paid at the same time.

(4) Renewal fees shall not be payable for a new Euro­pean patent application filed pursuant to Article 61, paragraph 1(b), in respect of the year in which it was actually filed and any preceding year.

Chapter IV

Priority

Rule 38

Declaration of priority and priority documents

(1) The declaration of priority referred to in Article 88, paragraph 1, shall state the date of the previous filing and the State in or for which it was made and shall in­dicate the file number.

(2) The date and State of the previous filing must be stated on filing the European patent application; the file number shall be indicated before the end of the six­teenth month after the date of priority.

(3) The copy of the previous application must be filed before the end of the sixteenth month after the date of priority. The copy must be certified as an exact copy of the previous application by the authority which re­ceived the previous application and must be accom­pa­nied by a certificate issued by that authority stating the date of filing of the previous application.

(4) The copy of the previous application shall be deemed 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 laid down by the President of the European Pat­ent Office.

(5) The translation of the previous application re­quired under Article 88, paragraph 1, must be filed within a time limit to be set by the European Patent Office, but at the latest within the time limit under Rule 51, para­graph 4. Alternatively, a declaration may be submitted that the European patent applica­tion is a complete translation of the previous applica­tion. Paragraph 4 shall apply mutatis mutandis.

(6) The particulars stated in the declaration of prior­ity shall appear in the published European patent ap­plica­tion and also on the European patent specifica­tion.

Rule 38a

Issuing priority documents

On request, the European Patent Office shall issue a certified copy of the European patent application (pri­ority document) to the applicant. The President of the European Patent Office shall determine all necessary arrangements, including the form of the priority docu­ment and the circumstances in which an administra­tive fee is payable.

Part IV

IMPLEMENTING REGULATIONS TO PART IV OF THE CONVENTION

Chapter I

Examination by the Receiving Section

Rule 39

Communication following the examination on filing

If the European patent application fails to meet the requirements laid down in Article 80, the Receiving Sec­tion shall communicate the disclosed deficiencies to the applicant and inform him that the application will not be dealt with as a European patent applica­tion unless he remedies the disclosed deficiencies within one month. If he does so, he shall be informed of the date of filing.

Rule 40

Examination for certain physical requirements

The physical requirements which a European patent application must satisfy pursuant to Article 91, para­graph 1(b), shall be those prescribed in Rule 27a, paragraphs 1 to 3, Rule 32, paragraphs 1 and 2, Rule 35, paragraphs 2 to 11 and 14, and Rule 36, para­graphs 2 and 4.

Rule 41

Rectification of deficiencies in the application documents

(1) If the examination provided for in Article 91, para­graph 1(a) to (d), reveals deficiencies in the European patent application, the Receiving Section shall inform the applicant accordingly and invite him to remedy the deficiencies within such period as it shall specify. The description, claims and drawings may be amended only to an extent sufficient to rem­edy the disclosed deficiencies in accordance with the obser­vations of the Receiving Section.

(2) Paragraph 1 shall not apply where the applicant, while claiming priority, has omitted to indicate on filing the European patent application the date or State of first filing.

(3) Paragraph 1 shall not apply where the examina­tion reveals that the date of the first filing given on fil­ing the European patent application precedes the date of filing of the European patent application by more than one year. In this event the Receiving Sec­tion shall in­form the applicant that there will be no right of priority for the application unless, within one month, the appli­cant indi­cates a corrected date, lying within the year preceding the date of filing of the European patent application.

Rule 42

Subsequent identification of the inventor

(1) If the examination provided for in Article 91, para­graph 1(f), reveals that the inventor has not been identi­fied in accordance with the provisions of Rule 17, the Receiving Section shall inform the applicant that the European patent application shall be deemed to be withdrawn unless this deficiency is corrected within the period prescribed by Article 91, paragraph 5.

(2) In the case of a European divisional application or a new European patent application filed pursuant to Ar­ticle 61, paragraph 1(b), the time limit for identi­fying the inventor may in no case expire before two months after the communication referred to in para­graph 1, which shall state the time limit.

Rule 43

Late-filed or missing drawings

(1) If the examination provided for in Article 91, para­graph 1(g), reveals that the drawings were filed later than the date of filing of the European patent applica­tion, the Receiving Section shall inform the applicant that the drawings and the references to the drawings in the European patent application shall be deemed to be deleted unless the applicant requests within a pe­riod of one month that the application be re-dated to the date on which the drawings were filed.

(2) If the examination reveals that the drawings were not filed, the Receiving Section shall invite him to file them within one month and inform him that the appli­ca­tion will be re-dated to the date on which they are filed, or, if they are not filed in due time, any ref­erence to them in the application shall be deemed to be de­leted.

(3) The applicant shall be informed of any new date of filing of the application.

Chapter II

European search report

Rule 44

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. If necessary, the relevant parts of the documents cited shall be identified (for example, by indicating the page, column and lines or the dia­grams).

(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 prior to 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 45

Incomplete search

If the Search Division considers that the European patent application does not comply with the provi­sions of the Convention to such an extent that it is not pos­si­ble to carry out a meaningful search into the state of the art on the basis of all or some of the claims, it shall either declare that search is not possi­ble or shall, so far as is practicable, draw up a partial European search report. The declaration and the par­tial report referred to shall be considered, for the pur­poses of subsequent pro­ceedings, as the European search re­port.

Rule 46

European search report where the invention lacks unity

(1) If the Search Division considers that the Euro­pean patent application does not comply with the re­quire­ment of unity of invention, it shall draw up a par­tial European search report on those parts of the Euro­pean patent 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 if the European search report is to cover the other inventions, a further search fee must be paid, for each invention involved, within a period to be fixed by the Search Division which must not be shorter than two weeks and must not exceed six weeks. The Search Division shall draw up the Euro­pean search report for those parts of the European patent application which relate to inven­tions in respect of which search fees have been paid.

(2) Any fee which has been paid under paragraph 1 shall be refunded if, during the examination of the European patent application by the Examining Divi­sion, the applicant requests a refund and the Examin­ing Division finds that the communication referred to in the said paragraph was not justified.

Rule 47

Definitive content of the abstract

(1) At the same time as drawing up the European search report, the Search Division shall determine the definitive content of the abstract.

(2) The definitive content of the abstract shall be transmitted to the applicant together with the Euro­pean search report.

Chapter III

Publication of the European patent application

Rule 48

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 to be deemed to have been completed.

(2) The European patent application shall not be pub­lished if it has been finally refused or withdrawn or deemed to be withdrawn before the termination of the technical preparations for publication.

Rule 49

Form of the publication of European patent applications and European search reports

(1) The President of the European Patent Office shall prescribe the form of the publication of the Euro­pean patent application and the data which are to be in­cluded. The same shall apply where the European search report and the abstract are published sepa­rately. The President of the European Patent Office may lay down special conditions for the publication of the abstract.

(2) The designated Contracting States shall be speci­fied in the published European patent applica­tion.

(3) If, before the termination of the technical prepara­tions for publication of the European patent applica­tion, the claims have been amended pursuant to Rule 86, paragraph 2, the new or amended claims shall be included in the publication in addition to the original claims.

Rule 50

Information about publication

(1) The European Patent Office shall communicate to the applicant the date on which the European Pat­ent Bulletin mentions the publication of the European search report and shall draw his attention in this com­munication to the provisions of Article 94, paragraphs 2 and 3.

(2) The applicant may not invoke the omission of the communication provided for in paragraph 1. If a later date than the date of the mention of the publication is specified in the communication, the later date shall be the decisive date as regards the time limit for filing the request for examination unless the error is appar­ent.

Chapter IV

Examination by the Examining Division

Rule 51

Examination procedure

(1) In the communication under Article 96, para­graph 1, the European Patent Office shall give the applicant an opportunity to comment on the European search report and to amend, where appropriate, the descrip­tion, claims and drawings.

(2) In any communication under Article 96, para­graph 2, the Examining Division shall, where appro­priate, in­vite the applicant to correct the deficiencies noted and to amend the description, claims and drawings.

(3) Any communication under Article 96, paragraph 2, shall contain a reasoned statement covering, where appropriate, all the grounds against the grant of the European patent.

(4) 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 shall invite him to pay the fees for grant and printing 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 a period to be speci­fied, which may not be less than two months or more than four months. The period shall be extended once by a maximum of two months provided the applicant so re­quests before it expires. If the applicant pays the fees and files the translation within this period, he shall be deemed to have approved the text intended for grant.

(5) If the applicant, within the period laid down in para­graph 4, requests amendments under Rule 86, para­graph 3, or the correction of errors under Rule 88, he shall, where the claims are amended or cor­rected, file a translation of the claims as amended or corrected. If the applicant pays the fees and files the translation within this period, he shall be deemed to have ap­proved the grant of the patent as amended or cor­rected.

(6) If the Examining Division does not consent to an amendment or correction requested under paragraph 5, it shall, before taking a decision, give the applicant an opportunity to submit, within a period to be speci­fied, his observations and any amendments consid­ered necessary by the Examining Division, and, where the claims are amended, a translation of the claims as amended. If the applicant submits such amendments, he shall be deemed to have approved the grant of the patent as amended. If the European patent application is refused, withdrawn or deemed to be withdrawn, the fees for grant and printing, and any claims fees paid under paragraph 7, shall be re­funded.

(7) If the European patent application in the text in­tended for grant comprises more than ten claims, the Examining Division shall invite the applicant to pay claims fees in respect of each additional claim within the period laid down in paragraph 4 unless these fees have already been paid under Rule 31, paragraph 1.

(8) If the fees for grant and printing or the claims fees are not paid in due time or if the translation is not filed in due time, the European patent application shall be deemed to be withdrawn.

(8a) If the designation fees become due after the communication under paragraph 4 has been notified, the mention of the grant of the European patent shall not be published until the designation fees have been paid. The applicant shall be informed accordingly.

(9) If a renewal fee becomes due after the communi­cation under paragraph 4 has been notified 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.

(10) The communication under paragraph 4 shall indi­cate the designated Contracting States which re­quire a translation pursuant to Article 65, paragraph 1.

(11) The decision to grant the European patent shall state which text of the European patent application forms the basis for the grant of the European patent.

Rule 52

Grant of the European patent to different applicants

Where different persons are entered in the Register of European Patents as applicants in respect of dif­ferent Contracting States, the Examining Division shall grant the European patent for each Contracting State to the applicant or applicants registered in re­spect of that State.

Chapter V

The European patent specification

Rule 53

Technical preparations for publication and form of the specification of the European patent

Rules 48 and 49, paragraphs 1 and 2, shall apply mu­tatis mutandis to the specification of the European patent. The specification shall also contain an indica­tion of the time limit for opposing the European pat­ent.

Rule 54

Certificate for a European patent

(1) 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, to which the specification shall be annexed. The certificate shall certify that the patent has been granted, in respect of the invention de­scribed in the patent specification, to the person named in the certificate, for the Contracting States designated in the specification.

(2) The proprietor of the patent may request that du­pli­cate copies of the European patent certificate be sup­plied to him upon payment of an administrative fee.

Part V

IMPLEMENTING REGULATIONS TO PART V OF THE CONVENTION

Rule 55

Content of the notice of opposition

The notice of opposition shall contain:

(a) the name and address of the opponent and the State in which his residence or principal place of busi­ness is located, in accordance with the provisions of Rule 26, paragraph 2(c);

(b) the number of the European patent against which opposition is filed, and the name of the proprietor and 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, evidence and arguments presented in support of these grounds;

(d) if the opponent has appointed a representative, his name and the address of his place of business, in accordance with the provisions of Rule 26, paragraph 2(c).

Rule 56

Rejection of the notice of opposition as inadmissible

(1) If the Opposition Division notes that the notice of opposition does not comply with the provisions of Ar­ti­cle 99, paragraph 1, Rule 1, paragraph 1, and Rule 55, sub-paragraph (c), or does not provide sufficient identi­fication of the patent against which opposition has been filed, it shall reject the notice of 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 mentioned in paragraph 1, it shall communicate this to the opponent and shall invite him to remedy the deficiencies noted within such period as it may spec­ify. If the notice of opposition is not corrected in good time the Opposition Division shall reject it as inadmis­sible.

(3) Any decision to reject a notice of opposition as inadmissible shall be communicated to the proprietor of the patent, together with a copy of the notice.

Rule 57

Preparation of the examination of the opposition

(1) The Opposition Division shall communicate the opposition to the proprietor of the patent and shall in­vite him to file his observations and to file amend­ments, where appropriate, to the description, claims and drawings within a period to be fixed by the Oppo­sition Division.

(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 provided for under paragraph 1.

(3) The observations and any amendments filed by the proprietor of the patent shall be communicated to the other parties concerned who shall be invited by the Opposition Division, if it considers it expedient, to re­ply within a period to be fixed by the Opposition Divi­sion.

(4) In the case of a notice of intervention in opposition proceedings the Opposition Division may dispense with the application of paragraphs 1 to 3.

Rule57a

Amendment of the European patent

Without prejudice to Rule 87, the description, claims and drawings may be amended, provided that the amendments are occasioned by grounds for opposi­tion specified in Article 100, even if the respective ground has not been invoked by the opponent.

Rule 58

Examination of opposition

(1) All communications issued pursuant to Article 101, paragraph 2, and all replies thereto shall be communi­cated to all parties.

(2) In any communication to the proprietor of the Euro­pean patent pursuant to Article 101, paragraph 2, he shall, where appropriate, be invited to file, where necessary, the description, claims and drawings in amended form.

(3) Where necessary, any communication to the pro­prietor of the European patent pursuant to Article 101, paragraph 2, shall contain a reasoned statement. Where appropriate, this statement shall cover all the grounds against the maintenance of the European pat­ent.

(4) Before the Opposition Division decides on the maintenance of the European patent in the amended form, it shall inform the parties that it intends to main­tain the patent as amended and shall invite them to state their observations within a period of two months if they disapprove of the text in which it is intended to maintain the patent.

(5) If disapproval of the text communicated by the Opposition Division is expressed, examination of the opposition may be continued; otherwise, the Opposi­tion Division shall, on expiry of the period referred to in paragraph 4, request the proprietor of the patent to pay, within three months, the fee for the printing of a new specification of the European patent and to file a translation of any amended claims in the two official languages of the European Patent Office other than the language of the proceedings.

(6) If the acts requested under paragraph 5 are not per­formed in due time they may still be validly per­formed within two months of notification of a commu­nication pointing out the failure to observe the time limit, provided that within this two-month period a sur­charge equal to twice the fee for printing a new speci­fi­cation of the European patent is paid.

(7) The communication of the Opposition Division un­der paragraph 5 shall indicate the designated Con­tracting States which require a translation pursuant to Article 65, paragraph 1.

(8) The decision to maintain the European patent as amended shall state which text of the European patent forms the basis for the maintenance thereof.

Rule 59

Requests for documents

Documents referred to by a party to opposition pro­ceedings shall be filed together with the notice of op­position or the written submissions in two copies. 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 60

Continuation of the opposition proceedings by the European Patent Office of its own motion

(1) If the European patent has been surrendered or has lapsed for all the designated States, the opposi­tion proceedings may be continued at the request of the opponent filed within two months as from a notifi­cation by the European Patent Office 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 when the opposi­tion is withdrawn.

Rule 61

Transfer of the European patent

Rule 20 shall apply mutatis mutandis to any transfer of the European patent made during the opposition pe­riod or during opposition proceedings.

Rule 61a

Documents in opposition proceedings

Part III, Chapter II, of the Implementing Regulations shall apply mutatis mutandis to documents filed in op­position proceedings.

Rule 62

Form of the new specification of the European patent in opposition proceedings

Rule 49, paragraphs 1 and 2, shall apply mutatis mutandis to the new specification of the European pat­ent.

Rule 62a

New certificate for a European patent

Rule 54 shall apply mutatis mutandis to the new speci­fication of the European patent.

Rule 63

Costs

(1) 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) A bill of costs, with supporting evidence, shall be attached to the request for the fixing of costs. The re­quest shall only be admissible if the decision in re­spect of which the fixing of costs is required has be­come fi­nal. Costs may be fixed once their credibility is estab­lished.

(3) The request for a decision by the Opposition Divi­sion on the awarding of costs by the registry, stating the reasons on which it is based, must be filed in writ­ing to the European Patent Office within one month after the date of notification of the awarding of costs. It shall not be deemed to be filed until the fee for the awarding of costs has been paid.

(4) The Opposition Division shall take a decision on the request referred to in paragraph 3 without oral pro­ceedings.

Part VI

IMPLEMENTING REGULATIONS TO PART VI OF THE CONVENTION

Rule 64

Content of the notice of appeal

The notice of appeal shall contain:

(a) the name and address of the appellant in accor­dance with the provisions of Rule 26, paragraph 2(c);

(b) a statement identifying the decision which is im­pugned and the extent to which amendment or can­cel­lation of the decision is requested.

Rule 65

Rejection of the appeal as inadmissible

(1) If the appeal does not comply with Articles 106 to 108 and with Rule 1, paragraph 1, and Rule 64, sub-paragraph (b), the Board of Appeal shall reject it as inadmissible, unless each deficiency has been reme­died before the relevant time limit laid down in Article 108 has expired.

(2) If the Board of Appeal notes that the appeal does not comply with the provisions of Rule 64, sub-para­graph (a), it shall communicate this to the appellant and shall invite him to remedy the deficiencies noted within such period as it may specify. If the appeal is not cor­rected in good time, the Board of Appeal shall reject it as inadmissible.

Rule 66

Examination of appeals

(1) Unless otherwise provided, the provisions relating to proceedings before the department which has made the decision from which the appeal is brought shall be applicable to appeal proceedings mutatis mutandis.

(2) The decision shall be authenticated by the Chair­man of the Board of Appeal and by the competent em­ployee of the registry of the Board of Appeal, ei­ther by their signature or by any other appropriate means. The decision shall contain:

(a) a statement that it is delivered by the Board of Appeal;

(b) the date when the decision was taken;

(c) the names of the Chairman and of the other members of the Board of Appeal taking part;

(d) the names of the parties and their representatives;

(e) a statement of the issues to be decided;

(f) a summary of the facts;

(g) the reasons;

(h) the order of the Board of Appeal, including, where appropriate, a decision on costs.

Rule 67

Reimbursement of appeal fees

The reimbursement of appeal fees shall be ordered in the event of interlocutory revision or where the Board of Appeal deems an appeal to be allowable, if such reimbursement is equitable by reason of a substantial procedural violation. In the event of interlocutory revi­sion, reimbursement shall be ordered by the depart­ment whose decision has been impugned and, in other cases, by the Board of Appeal.

Part VII

IMPLEMENTING REGULATIONS TO PART VII OF THE CONVENTION

Chapter I

Decisions and communications of the European Patent Office

Rule 68

Form of decisions

(1) Where oral proceedings are held before the Euro­pean Patent Office, the decision may be given orally. Subsequently the decision in writing shall be notified to the parties.

(2) Decisions of the European Patent Office which are open to appeal shall be reasoned and shall be ac­com­panied by a written communication of the possi­bility of appeal. The communication shall also draw the atten­tion of the parties to the provisions laid down in Arti­cles 106 to 108, the text of which shall be at­tached. The parties may not invoke the omission of the com­munication.

Rule 69

Noting of loss of rights

(1) If the European Patent Office notes that the loss of any right results from the Convention, without any decision concerning the refusal of the European pat­ent application or the grant, revocation or mainte­nance of the European patent, or the taking of evi­dence, it shall communicate this to the person con­cerned in accor­dance with the provisions of Article 119.

(2) If the person concerned considers that the find­ing of the European Patent Office is inaccurate, he may, within two months after notification of the com­muni­ca­tion referred to in paragraph 1, apply for a de­cision on the matter by the European Patent Office. Such deci­sion shall be given only if the European Patent Of­fice does not share the opinion of the per­son re­questing it; otherwise the European Patent Of­fice shall inform the person requesting the decision.

Rule 70

Signature, name, seal

(1) Any decision, communication and notice from the European Patent Office is to be signed by and to state the name of the employee responsible.

(2) Where the documents mentioned in paragraph 1 are produced by the employee responsible using a computer, a seal may replace the signature. Where the documents are produced automatically by a com­puter the employee’s name may also be dispensed with. The same applies to pre-printed notices and communica­tions.

Chapter II

Oral proceedings and taking of evidence

Rule 71

Summons to oral proceedings

(1) The parties shall be summoned to oral proceed­ings provided for in Article 116 and their attention shall be drawn to paragraph 2 of this Rule. At least two months’ notice of the summons shall be given unless the parties agree to a shorter period.

(2) If a party who has been duly summoned to oral proceedings before the European Patent Office does not appear as summoned, the proceedings may con­tinue without him.

Rule71a

Preparation of oral proceedings

(1) When issuing the summons, the European Pat­ent Office shall draw attention to the points which in its opinion need to be discussed for the purposes of the decision to be taken. At the same time a final date for making written submissions in preparation for the oral proceedings shall be fixed. Rule84 shall not ap­ply. New facts and evidence presented after that date need not be considered, unless admitted on the grounds that the subject of the proceedings has changed.

(2) If the applicant or patent proprietor has been noti­fied of the grounds prejudicing the grant or mainte­nance of the patent, he may be invited to sub­mit, by the date specified in paragraph1, second sentence, documents which meet the requirements of the Con­vention. Paragraph1, third and fourth sen­tences, shall apply mutatis mutandis.

Rule 72

Taking of evidence by the European Patent Office

(1) Where the European Patent Office considers it necessary to hear the oral evidence of parties, wit­nesses or experts or to carry out an inspection, it shall make a decision to this end, setting out the investiga­tion which it intends to carry out, relevant facts to be proved and the date, time and place of the investiga­tion. If oral evidence of witnesses and experts is re­quested by a party, the decision of the European Pat­ent Office shall determine the period of time within which the party filing the request must make known to the European Patent Office the names and ad­dresses of the witnesses and experts whom it wishes to be heard.

(2) At least two months’ notice of a summons is­sued to a party, witness or expert to give evidence shall be given unless they agree to a shorter period. The sum­mons shall contain:

(a) an extract from the decision mentioned in para­graph 1, indicating in particular the date, time and place of the investigation ordered and stating the facts re­garding which parties, witnesses and experts are to be heard;

(b) the names of the parties to the proceedings and particulars of the rights which the witnesses or ex­perts may invoke under the provisions of Rule 74, para­graphs 2 to 4;

(c) an indication that the party, witness or expert may request to be heard by the competent court of his country of residence and a requirement that he inform the European Patent Office within a time limit to be fixed by the Office whether he is prepared to appear before it.

(3) Before a party, witness or expert may be heard, he shall be informed that the European Patent Office may request the competent court in the country of residence of the person concerned to re-examine his evidence on oath or in an equally binding form.

(4) The parties may attend an investigation and may put relevant questions to the testifying parties, wit­nesses and experts.

Rule 73

Commissioning of experts

(1) The European Patent Office shall decide in what form the report made by an expert whom it appoints shall be submitted.

(2) The terms of reference of the expert shall in­clude:

(a) a precise description of his task;

(b) the time limit laid down for the submission of the expert report;

(c) the names of the parties to the proceedings;

(d) particulars of the rights which he may invoke un­der the provisions of Rule 74, paragraphs 2 to 4.

(3) A copy of any written report shall be submitted to the parties.

(4) The parties may object to an expert. The depart­ment of the European Patent Office concerned shall decide on the objection.

Rule 74

Costs of taking of evidence

(1) The taking of evidence by the European Patent Office may be made conditional upon deposit with it, by the party who requested the evidence to be taken, of a sum the amount of which shall be fixed by refer­ence to an estimate of the costs.

(2) Witnesses and experts who are summoned by and appear before the European Patent Office shall be en­titled to appropriate reimbursement of expenses for travel and subsistence. An advance for these ex­penses may be granted to them. The first sentence shall apply to witnesses and experts who appear be­fore the Euro­pean Patent Office without being sum­moned by it and are heard as witnesses or experts.

(3) Witnesses entitled to reimbursement under para­graph 2 shall also be entitled to appropriate compen­sation for loss of earnings, and experts to fees for their work. These payments shall be made to the wit­nesses and experts after they have fulfilled their du­ties or tasks.

(4) The Administrative Council shall lay down the de­tails governing the implementation of the provi­sions of paragraphs 2 and 3. Payment of amounts due pur­suant to these paragraphs shall be made by the Euro­pean Patent Office.

Rule 75

Conservation of evidence

(1) On request, the European Patent Office may, with­out delay, hear oral evidence or conduct inspec­tions, with a view to conserving evidence of facts li­able to af­fect a decision which it may be called upon to take with regard to an existing European patent ap­plication or a European patent, where there is reason to fear that it might subsequently become more diffi­cult or even im­possible to take evidence. The date on which the measures are to be taken shall be commu­nicated to the applicant for or proprietor of the patent in sufficient time to allow him to attend. He may ask relevant ques­tions.

(2) The request shall contain:

(a) the name and address of the person filing the re-quest and the State in which his residence or princi­pal place of business is located, in accordance with the provisions of Rule 26, paragraph 2(c);

(b) sufficient identification of the European patent ap­plication or European patent in question;

(c) the designation of the facts in respect of which evi­dence is to be taken;

(d) particulars of the way in which evidence is to be taken;

(e) a statement establishing a prima facie case for fearing that it might subsequently become more diffi­cult or impossible to take evidence.

(3) The request shall not be deemed to have been filed until the fee for conservation of evidence has been paid.

(4) The decision on the request and any resulting tak­ing of evidence shall be incumbent upon the de­part­ment of the European Patent Office required to take the deci­sion liable to be affected by the facts to be estab­lished. The provisions of the Convention with regard to the taking of evidence in proceedings be­fore the Euro­pean Patent Office shall be applicable.

Rule 76

Minutes of oral proceedings and of taking of evidence

(1) Minutes of oral proceedings and of the taking of evidence shall be drawn up containing the essentials of the oral proceedings or of the taking of evidence, the relevant statements made by the parties, the tes­timony of the parties, witnesses or experts and the re­sult of any inspection.

(2) The minutes of the testimony of a witness, expert or party shall be read out or submitted to him so that he may examine them. It shall be noted in the min­utes that this formality has been carried out and that the person who gave the testimony approved the minutes. If his approval is not given, his objections shall be noted.

(3) The minutes shall be authenticated by the em­ployee who drew them up and by the employee who conducted the oral proceedings or taking of evidence, either by their signature or by any other appropriate means.

(4) The parties shall be provided with a copy of the minutes.

Chapter III

Notifications

Rule 77

General provisions on notifications

(1) In proceedings before the European Patent Of­fice, any notification to be made shall take the form either of the original document, a copy thereof certi­fied by, or bearing the seal of, the European Patent Office or a computer print-out bearing such seal. Copies of documents emanating from the parties themselves shall not require such certification.

(2) Notification shall be made:

(a) by post in accordance with Rule 78;

(b) by delivery on the premises of the European Pat­ent Office in accordance with Rule 79;

(c) by public notice in accordance with Rule 80, or

(d) by such technical means of communication as determined by the President of the European Patent Office and under the conditions laid down by him gov­erning their use.

(3) Notification through the central industrial prop­erty office of a Contracting State shall be made in ac­cor­dance with the provisions applicable to the said office in national proceedings.

Rule 78

Notification by post

(1) Decisions incurring a time limit for appeal, sum­monses and other documents as decided on by the President of the European Patent Office shall be noti­fied by registered letter with advice of delivery. All other notifications by post shall be by registered let­ter.

(2) Where notification is effected by registered letter, whether or not with advice of delivery, this shall be deemed to be delivered to the addressee on the tenth day following its posting, unless the letter has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the ad­dressee, as the case may be.

(3) Notification by registered letter, whether or not with advice of delivery, shall be deemed to have been ef­fected even if acceptance of the letter has been re­fused.

(4) To the extent that notification by post is not cov­ered by paragraphs1 to 3, the law of the State on the territory of which the notification is made shall apply.

Rule 79

Notification by delivery by hand

Notification may be effected on the premises of the European Patent Office by delivery by hand of the document to the addressee, who shall on delivery acknowledge its receipt. Notification shall be deemed to have taken place even if the addressee refuses to accept the document or to acknowledge receipt thereof.

Rule 80

Public notification

(1) If the address of the addressee cannot be estab­lished, or if notification in accordance with Rule 78, paragraph 1, has proved to be impossible even after a second attempt by the European Patent Of­fice, notifi­cation shall be effected by public notice.

(2) The President of the European Patent Office shall determine how the public notice is to be given and the beginning of the period of one month on the expiry of which the document shall be deemed to have been notified.

Rule 81

Notification to representatives

(1) If a representative has been appointed, notifica­tions shall be addressed to him.

(2) If several such representatives have been ap­pointed for a single interested party, notification to any one of them shall be sufficient.

(3) If several interested parties have a common representative, notification of a single document to the common representative shall be sufficient.

Rule 82

Irregularities in the notification

Where a document has reached the addressee, if the European Patent Office is unable to prove that it has been duly notified, or if provisions relating to its notifi­cation have not been observed, the document shall be deemed to have been notified on the date estab­lished by the European Patent Office as the date of receipt.

Chapter IV

Time limits

Rule 83

Calculation of time limits

(1) Periods shall be laid down in terms of full years, months, weeks or days.

(2) Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another pe­riod. Where the procedural step is a notification, the event considered shall be the receipt of the document noti­fied, unless otherwise provided.

(3) When a period is expressed as one year or a cer­tain number of years, it shall expire in the relevant sub­sequent year in the month having the same name and on the day having the same number as the month and the day on which the said event occurred, pro­vided that if the relevant subsequent month has no day with the same number the period shall expire on the last day of that month.

(4) When a period is expressed as one month or a certain number of months, it shall expire in the rele­vant subsequent month on the day which has the same number as the day on which the said event oc­curred, provided that if the relevant subsequent month has no day with the same number the period shall expire on the last day of that month.

(5) When a period is expressed as one week or a cer­tain number of weeks, it shall expire in the relevant subsequent week on the day having the same name as the day on which the said event occurred.

Rule 84

Duration of time limits

Where the Convention or these Implementing Regu­la­tions specify a period to be determined by the Euro­pean Patent Office, such period shall be not less than two months nor more than four months; in certain spe­cial circumstances may it be up to six months. In cer­tain special cases, the period may be extended upon request, presented before the expiry of such pe­riod.

Rule84a

Late receipt of documents

(1) A document received late at the European Pat­ent Office shall be deemed to have been received in due time if it was posted, or delivered to a recognized de­livery service, in due time before the expiry of the time limit in accordance with the conditions laid down by the President of the European Patent Office, unless the document was received later than three months after expiry of the time limit.

(2) Paragraph 1 shall apply mutatis mutandis to the time limits provided for in the Convention where trans­ac­tions are carried out with the competent au­thority in ac­cordance with Article 75, paragraph 1(b) or paragraph 2(b).

Rule 85

Extension of time limits

(1) If a time limit expires on a day on which one of the filing offices of the European Patent Office in the sense of Article 75, paragraph 1(a) is not open for re­ceipt of documents or on which, for reasons other than those referred to in paragraph 2, ordinary mail is not delivered there, the time limit shall extend until the first day thereafter on which all the filing offices are open for receipt of documents and on which ordinary mail is delivered.

(2) If a time limit expires on a day on which there is a general interruption or subsequent dislocation in the delivery of mail in a Contracting State or between a Contracting State and the European Patent Office, the time limit shall extend to the first day following the end of the period of interruption or dislocation for par­ties resident in the State concerned or who have ap­pointed representatives with a place of business in that State. The first sentence shall apply mutatis mu­tandis to the period referred to in Article 77, para­graph 5. In the case where the State concerned is the State in which the European Patent Office is located, this provision shall apply to all parties. The duration of the above-mentioned period shall be as stated by the President of the European Patent Office.

(3) Paragraphs1 and 2 shall apply mutatis mutandis to the time limits provided for in the Convention in the case of transactions carried out with the competent authority in accordance with Article 75, para­graph1(b) or paragraph2(b).

(4) If an exceptional occurrence such as a natural dis­aster or strike interrupts or dislocates the proper functioning of the European Patent Office so that any communication from the Office to parties concerning the expiry of a time limit is delayed, acts to be com­pleted within such a time limit may still be validly com­pleted within one month after the notification of the delayed communication. The date of commencement and the end of any such interruption or dislocation shall be as stated by the President of the European Patent Office.

(5) Without prejudice to paragraphs 1 to 4, evi­dence may be offered that on any of the ten days preceding the day of expiration of a time limit the mail service was interrupted or subsequently dislocated on account of war, revolution, civil disorder, strike, natu­ral calam­ity, or other like reason, in the locality where the party or his representative resides or has his place of busi­ness or is staying. If such circumstances are proven to the satisfaction of the European Patent Office, a document received late shall be deemed to have been received in due time provided that the mailing has been effected within five days after the mail service was re­sumed.

Rule 85a

Period of grace for payment of fees

(1) If the filing fee, the search fee or a designation fee has not been paid within the time limits provided for in Article 78, paragraph 2, Article 79, paragraph 2, Rule 15, paragraph 2, or Rule 25, paragraph 2, it may still be validly paid within a period of grace of one month from notification of a communication pointing out the failure to observe the time limit, provided that within this pe­riod a surcharge is paid.

(2) Designation fees in respect of which the appli­cant has dispensed with notification under paragraph 1 may still be validly paid within a period of grace of two months of expiry of the normal time limits referred to in paragraph 1, provided that within this period a sur­charge is paid.

Rule 85b

Period of grace for the filing of the request for examination

If the request for examination has not been filed within the time limit provided for in Article 94, para­graph 2, it may still be validly filed within a period of grace of one month from notification of a communica­tion pointing out the failure to observe the time limit, provided that within this period a surcharge is paid.

Chapter V

Amendments and corrections

Rule 86

Amendment of the European patent application

(1) Before receiving the European search report the applicant may not amend the description, claims or drawings of a European patent application except where otherwise provided.

(2) After receiving the European search report and before receipt of the first communication from the Ex­amining Division, the applicant may, of his own voli­tion, amend the description, claims and drawings.

(3) After receipt of the first communication from the Examining Division the applicant may, of his own voli­tion, amend once the description, claims and draw­ings provided that the amendment is filed at the same time as the reply to the communication. No further amend­ment may be made without the consent of the Exam­ining Division.

(4) Amended claims may not relate to unsearched subject-matter which does not combine with the origi­nally claimed invention or group of inventions to form a single general inventive concept.

Rule 87

Different claims, description

and drawings for different States

If the European Patent Office notes that, in respect of one or some of the designated Contracting States, the content of an earlier European patent application forms part of the state of the art pursuant to Arti­cle54, para­graphs3 and 4, or if it is informed of the existence of a prior right under Article139, para­graph2, the European patent application or Euro­pean patent may contain for such State or States claims and, if the European Pat­ent Office considers it neces­sary, a description and drawings which are dif­ferent from those for the other designated Contracting States.

Rule 88

Correction of errors in documents filed with the European Patent Office

Linguistic errors, errors of transcription and mistakes in any document filed with the European Patent Office may be corrected on request. How ever, if the re­quest for such correction concerns a description, claims or drawings, the correction must be obvious in the sense that it is immediately evident that nothing else would have been intended than what is offered as the correc­tion.

Rule 89

Correction of errors in decisions

In decisions of the European Patent Office, only lin­guistic errors, errors of transcription and obvious mis­takes may be corrected.

Chapter VI

Interruption of proceedings

Rule 90

Interruption of proceedings

(1) 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 authorized by national law to act on his be­half. To the extent that the above events do not affect the authorisation of a representative appointed under Article 134, proceedings shall be interrupted only on application by such representative;

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

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

(2) When, in the cases referred to in paragraph 1(a) and (b), the European Patent Office has been in­formed of the identity of the person authorized to continue the proceedings before the European Patent Office, the European Patent Office shall communicate to such person and to any interested third party that the pro­ceedings shall be resumed as from a date to be fixed by the European Patent Office.

(3) In the case referred to in paragraph 1(c), the pro­ceedings shall be resumed when the European Pat­ent Office has been informed of the appointment of a new representative of the applicant or when the European Patent Office has notified to the other par­ties the communication of the appointment of a new repre­sen­tative of the proprietor of the patent. If, three months after the beginning of the interruption of the proceed­ings, the European Patent Office has not been in­formed of the appointment of a new repre­sentative, it shall communicate to the applicant for or proprietor of the patent:

(a) where Article 133, paragraph 2, is applicable, that the European patent application will be deemed to be withdrawn or the European patent will be re­voked if the information is not submitted within two months after this communication is notified, or

(b) where Article 133, paragraph 2, is not applicable, that the proceedings will be resumed with the appli­cant for or proprietor of the patent as from the date on which this communication is notified.

(4) The time limits, other than the time limit for mak­ing a request for examination and the time limit for paying the renewal fees, in force as regards the ap­plicant for or proprietor of the patent at the date of interruption of the proceedings, shall begin again as from the day on which the proceedings are resumed. If such date is less than two months before the end of the period within which the request for examination must be filed, such a request may be filed up to the end of two months after such date.

Chapter VII

Waiving of enforced recovery procedures

Rule 91

Waiving of enforced recovery procedures

The President of the European Patent Office may waive action for the enforced recovery of any sum due if the sum to be recovered is minimal or if such recov­ery is too uncertain.

Chapter VIII

Information to the public

Rule 92

Entries in the Register of European Patents

(1) The Register of European Patents shall contain the following entries:

(a) number of the European patent application;

(b) date of filing of the European patent application;

(c) title of the invention;

(d) classification code given to the European patent application;

(e) the Contracting States designated;

(f) family name, given names, address and the State in which the residence or principal place of business of the applicant for or proprietor of the European pat­ent is located;

(g) family name, given names and address of the in­ventor designated by the applicant for or proprietor of the patent, unless he has waived his right to be men­tioned under Rule18, paragraph1;

(h) family name, given names and address of the place of business of the representative of the appli­cant for or proprietor of the patent referred to in Arti­cle 134; in the case of several representatives only the family name, given names and address of the place of business of the representative first named, followed by the words “and others”, shall be entered; however, in the case of an association referred to in Rule 101, paragraph 9, only the name and address of the association shall be entered;

(i) priority data (date, State and file number of the pre­vious application);

(j) in the event of a division of the European patent ap­plication, the numbers of the European divisional appli­cations;

(k) in the case of European divisional applications and a new European patent application under Article 61, paragraph 1(b), the information referred to under sub-paragraphs (a), (b) and (i) with regard to the ear­lier European patent application;

(l) date of publication of the European patent applica­tion and where appropriate date of the sepa­rate publication of the European search report;

(m) date of filing of the request for examination;

(n) date on which the European patent application is re­fused, withdrawn or deemed to be withdrawn;

(o) date of publication of the mention of the grant of the European patent;

(p) date of lapse of the European patent in a Con­tract­ing State during the opposition period and, where appropriate, pending a final decision on opposition;

(q) date of filing opposition;

(r) date and purport of the decision on opposition;

(s) dates of suspension and resumption of proceed­ings in the cases referred to in Rule 13;

(t) dates of interruption and resumption of proceed­ings in the case referred to in Rule 90;

(u) date of re-establishment of rights provided that an entry has been made in accordance with sub-para­graph (n) or sub-paragraph (r);

(v) the filing of a request to the European Patent Of­fice pursuant to Article 135;

(w) rights and transfer of such rights over a Euro­pean patent application or European patent where these are recorded pursuant to these Implementing Regulations.

(2) The President of the European Patent Office may decide that entries other than those referred to in paragraph 1 shall be made in the Register of Euro­pean Patents.

(3) Extracts from the Register of European Patents shall be delivered on request on payment of an ad­min­istrative fee.

Rule 93

Parts of the file not for inspection

The parts of the file which shall be excluded from inspection pursuant to Article 128, paragraph 4, shall be:

(a) the documents relating to the exclusion of or ob­jec­tions to members of the Boards of Appeal or of the Enlarged Board of Appeal;

(b) draft decisions and opinions, and all other docu­ments, used for the preparation of decisions and opinions, which are not communicated to the parties;

(c) the designation of the inventor, if he has waived his right to be mentioned under Rule18, paragraph1;

(d) any other document excluded from inspection by the President of the European Patent Office on the ground that such inspection would not serve the pur­pose of informing the public about the European pat­ent application or the resulting patent.

Rule 94

Procedures for the inspection of files

(1) Inspection of the files of European patent applica­tions and patents shall either be of the original docu­ment, or of copies thereof, or of technical means of storage if the files are stored in this way.

(2) The President of the European Patent Office shall determine all file‑inspection arrangements, in­cluding the circumstances in which an administrative fee is payable.

Rule 95

Communication of information contained in the files

Subject to the restrictions provided for in Article 128, paragraphs 1 to 4, and in Rule 93, the European Pat­ent Office may, upon request, communicate informa­tion concerning any file of a European patent applica­tion or European patent subject to the payment of an admin­istrative fee. However, the European Patent Of­fice may require the exercise of the option to obtain in­spection of the file itself should it deem this to be ap­propriate in view of the quantity of information to be supplied.

Rule 95a

Constitution, maintenance and preservation of files

(1) The European Patent Office shall constitute, main­tain and preserve files relating to all European patent applications and patents.

(2) The President of the European Patent Office shall determine the form in which the files relating to Euro­pean patent applications and patents shall be consti­tuted, maintained and preserved.

(3) Documents incorporated in an electronic file shall be considered to be originals.

(4) Files relating to European patent applications and patents shall be preserved for at least five years from the end of the year in which:

(a) the application is refused or withdrawn or is deemed to be withdrawn;

(b) the patent is revoked pursuant to opposition pro­ceedings; or

(c) the patent or the extended term or correspond­ing protection under Article 63, paragraph2, lapses in the last of the designated States.

(5) Without prejudice to paragraph 4, files relating to European patent applications which have given rise to divisional applications under Article 76 or new appli­ca­tions under Article61, paragraph 1(b), shall be pre­served for at least the same period as the files relat­ing to any one of these last applications. The same shall apply to files relating to any resulting European pat­ents.

Rule 96

Additional publications by the European Patent Office

(1) The President of the European Patent Office may provide that, and in what form, the data referred to in Article 128, paragraph 5, shall be communicated to third parties or published.

(2) The President of the European Patent Office may provide for the publication of new or amended claims received after the time mentioned in Rule 49, para­graph 3, the form of such publication and the en­try in the European Patent Bulletin of particulars con­cerning such claims.

Chapter IX

Legal and administrative co-operation

Rule 97

Communications between the European Patent Office and the authorities of the Contracting States

(1) Communications between the European Patent Of­fice and the central industrial property offices of the Contracting States which arise out of the application of the Convention shall be effected directly between these authorities. Communications between the Euro­pean Patent Office and the courts or other authorities of the Contracting States may be effected through the inter­mediary of the above central industrial property of­fices.

(2) Expenditure in respect of communications under paragraph 1 shall be chargeable to the authority mak­ing the communications, which shall be exempt from fees.

Rule 98

Inspection of files by or via courts or authorities of the Contracting States

(1) Inspection of the files of European patent applica­tions or of European patents by courts or au­thorities of the Contracting States shall be of the original docu­ments or of copies thereof; Rule 94 shall not ap­ply.

(2) Courts or Public Prosecutors’ Offices of the Con­tracting States may, in the course of their proceed­ings, communicate to third parties files or copies thereof transmitted to them by the European Patent Office. Such communications shall be effected in ac­cordance with the conditions laid down in Article 128; they shall not incur the payment of the administrative fee.

(3) The European Patent Office shall, at the time of transmission of the files or copies thereof to the courts or Public Prosecutors’ Offices of the Contract­ing States, indicate such restrictions as may, under Article 128, paragraphs 1 and 4, be applicable to the commu­nication to third parties of files concerning a European patent application or a European patent.

Rule 99

Procedure for letters rogatory

(1) Each Contracting State shall designate a central authority which will undertake to receive letters roga­tory issued by the European Patent Office and to transmit them to the authority competent to execute them.

(2) The European Patent Office shall draw up letters rogatory in the language of the competent authority or shall attach to such letters rogatory a translation into the language of that authority.

(3) Subject to the provisions of paragraphs 5 and 6, the competent authority shall apply its own law as to the procedures to be followed in executing such re­quests. In particular, it shall apply appropriate meas­ures of compulsion in accordance with its own law.

(4) If the authority to which the letters rogatory are transmitted is not competent to execute them, the let­ters rogatory shall be sent forthwith to the central au­thority referred to in paragraph 1. That authority shall transmit the letters rogatory either to the competent authority in that State, or to the European Patent Of­fice where no authority is competent in that State.

(5) The European Patent Office shall be informed of the time when, and the place where, the enquiry or other legal measure is to take place and shall inform the parties, witnesses and experts concerned.

(6) If so requested by the European Patent Office, the competent authority shall permit the attendance of members of the department concerned and allow them to question any person giving evidence either di­rectly or through the competent authority.

(7) The execution of letters rogatory shall not give rise to any reimbursement of fees or costs of any na­ture. Nevertheless, the State in which letters rogatory are executed has the right to require the Organisation to reimburse any fees paid to experts and interpreters and the costs incurred by the procedure of paragraph 6.

(8) If the law applied by the competent authority obliges the parties to secure evidence and the author­ity is not able itself to execute the letters roga­tory, that authority may, with the consent of the European Pat­ent Office, appoint a suitable person to do so. When seeking the consent of the European Patent Office, the competent authority shall indicate the approxi­mate costs which would result from this procedure. If the European Pat­ent Office gives its consent, the Or­ganisation shall re­imburse any costs incurred; without such consent, the Organisation shall not be liable for such costs.

Chapter X

Representation

Rule 100

Appointment of a common representative

(1) If there is more than one applicant and the re­quest for the grant of a European patent does not name a common representative, the applicant first named in the request shall be considered to be the common rep­resentative. However, if one of the appli­cants is obliged to appoint a professional representa­tive this representative shall be considered to be the common representative unless the first named appli­cant has ap­pointed a professional representative. The same shall apply mutatis mutandis to third par­ties acting in com­mon in filing notice of opposition or intervention and to joint proprietors of a European patent.

(2) If, during the course of proceedings, transfer is made to more than one person, and such persons have not appointed a common representative, para­graph 1 shall apply. If such application is not possi­ble, the European Patent Office shall require such persons to appoint a common representative within two months. If this request is not complied with, the Euro­pean Patent Office shall appoint the common repre­sentative.

Rule 101

Authorisations

(1) Representatives acting before the European Pat­ent Office shall upon request file a signed authori­sation within a period to be specified by the European Patent Office. The President of the European Patent Office shall determine the cases where an authorisa­tion is to be filed. The authorisation may cover one or more European patent applications or European patents and shall be filed in the corresponding num­ber of copies. Where the requirements of Article 133, paragraph 2, have not been satisfied, the same pe­riod shall be specified for the notification of the ap­point­ment of a representative and for the filing of the au­thorisation.

(2) A general authorisation enabling a representa­tive to act in respect of all the patent transactions of the party making the authorisation may be filed. A single copy shall be sufficient.

(3) The President of the European Patent Office may determine and publish in the Official Journal of the European Patent Office the form and content of:

(a) an authorisation in so far as it relates to the repres­entation of persons as defined in Article 133, paragraph 2;

(b) a general authorisation.

(4) If the authorisation is not filed in due time, any pro­cedural steps taken by the representative other than the filing of a European patent application shall, without prejudice to any other legal consequences provided for in the Convention, be deemed not to have been taken.

(5) The provisions of paragraphs 1 and 2 shall apply mutatis mutandis to a document withdrawing an au­thorisation.

(6) Any representative who has ceased to be authorized shall continue to be regarded as the rep­resenta­tive until the termination of his authorisation has been communicated to the European Patent Of­fice.

(7) Subject to any provisions to the contrary con­tained therein, an authorisation shall not terminate vis-Ê -vis the European Patent Office upon the death of the per­son who gave it.

(8) If several representatives are appointed by a party, they may, notwithstanding any provisions to the contrary in the notification of their appointment or in the authorisation, act either jointly or singly.

(9) The authorisation of an association of represen­tat­ives shall be deemed to be authorisation of any rep­resentative who can establish that he practises within that association.

Rule 102

Amendment of the list of professional representatives

(1) The entry of a professional representative shall be deleted from the list of professional representa­tives if he so requests or if, despite repeated remind­ers, he fails to pay the annual subscription to the In­stitute of Professional Representatives before the European Patent Office before the end of the year for which the subscription is due.

(2) After the expiry of the transitional period pro­vided for in Article 163, paragraph 1, and without prejudice to any disciplinary measures taken under Article 134, paragraph 8(c), the entry of any profes­sional repres­entative may be deleted automatically in the following cases only:

(a) in the event of the death or legal incapacity of the professional representative;

(b) in the event of the professional representative no longer being a national of one of the Contracting States, unless he was entered on the list during the transitional period or was granted exemption by the President of the European Patent Office in accor­dance with Article 134, paragraph 6;

(c) in the event of the professional representative no longer having his place of business or employment within the territory of one of the Contracting States.

(3) A person whose entry has been deleted shall, upon request, be re-entered in the list of professional repre­sentatives if the conditions for deletion no longer ex­ist.

Part VIII

IMPLEMENTING REGULATIONS TO PART VIII OF THE CONVENTION

Rule 103

Information to the public in the event of conversion

(1) The documents which, in accordance with Article 136, accompany the request for conversion shall be communicated to the public by the central industrial property office under the same conditions and to the same extent as documents relating to national proceedings.

(2) The printed specifications of the national patent re­sulting from the conversion of a European patent application must mention that application.

Part IX

IMPLEMENTING REGULATIONS TO PART X OF THE CONVENTION

Rule 104

The European Patent Office as a receiving Office

(1) When the European Patent Office acts as a re­ceiving Office under the Cooperation Treaty, the in­ter­national application shall be filed in English, French or German. It shall be filed in three copies; the same ap­plies to any of the documents referred to in the check list provided for in Rule 3.3(a)(ii) of the Regula­tions un­der the Cooperation Treaty except the receipt for the fees paid or the cheque for the payment of fees. The President of the European Patent Office may, how­ever, decide that the international application and any related item shall be filed in fewer than three copies.

(2) If the provisions of paragraph 1, second sentence, are not complied with, the missing copies shall be pre­pared by the European Patent Office at the ex­pense of the applicant.

(3) If an international application is filed with an au­thor­ity of a Contracting State for transmittal to the Euro­pean Patent Office as the receiving Office, the Con­tracting State must ensure that the application reaches the European Patent Office not later than two weeks before the end of the thirteenth month after fil­ing or, if priority is claimed, after the date of priority.

Rule 105

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

(1) In the case of Article 17, paragraph 3(a), of the Co­operation Treaty, an additional fee equal to the amount of the search fee shall be payable for each further in­vention for which an international search is to be car­ried out.

(2) In the case of Article 34, paragraph 3(a), of the Co­operation Treaty, an additional fee equal to the amount of the preliminary examination fee shall be payable for each further invention for which the inter­national pre­liminary examination is to be carried out.

(3) Without prejudice to Rules 40.2(e) and 68.3(e) of the Regulations under the Cooperation Treaty, where an additional fee has been paid under protest, the European Patent Office shall review whether the invita­tion to pay the additional fee was justified and, if it does not so find, shall refund the additional fee. If the European Patent Office after such a review con­siders the invitation to be justified, it shall inform the applicant accordingly and shall invite him to pay a fee for the ex­amination of the protest (“protest fee”). If the protest fee is paid in due time, the protest shall be re­ferred to the Board of Appeal for a decision.

Rule 106

The national fee

The national fee provided for in Article 158, paragraph 2, shall comprise the following fees:

(a) a national basic fee equal to the filing fee provided for in Article 78, paragraph 2, and

(b) the designation fees provided for in Article 79, paragraph 2.

Rule 107

The European Patent Office as a designated or elected Office — Requirements for entry into the European phase

(1) In the case of an international application as re­ferred to in Article150, paragraph3, the applicant must perform the following acts within a period of thirty-one months from the date of filing of the appli­cation or, if priority has been claimed, from the priority date:

(a) supply, where applicable, the translation of the international application required under Article 158, para­graph 2;

(b) specify the application documents, as originally filed or in amended form, on which the European grant procedure is to be based;

(c) pay the national basic fee provided for in Rule 106(a);

(d) pay the designation fees if the time limit specified in Article 79, paragraph 2, has expired earlier;

(e) pay the search fee provided for in Article 157, paragraph 2(b), where a supplementary European search report has to be drawn up;

(f) file the request for examination provided for in Arti­cle 94, if the time limit specified in Article94, para­graph 2, has expired earlier;

(g) pay the renewal fee in respect of the third year pro­vided for in Article 86, paragraph 1, if the fee has fallen due earlier under Rule37, paragraph1;

(h) file, where applicable, the certificate of exhibition re­ferred to in Article 55, paragraph 2, and Rule 23.

(2) Where the European Patent Office has drawn up an international preliminary examination report the ex­ami­nation fee shall be reduced as laid down in the Rules relating to Fees. If the report was established on cer­tain parts of the international application in ac­cordance with Article 34, paragraph 3(c), of the Co­operation Treaty, the reduction shall be allowed only if examina­tion is to be performed on the subject-matter covered by the report.

Rule 108

Consequences of non-fulfilment of certain requirements

(1) If either the translation of the international applica­tion or the request for examination is not filed in due time, or if the national basic fee or the search fee is not paid in due time, or if no designation fee is paid in due time, the European patent application shall be deemed to be withdrawn.

(2) The designation of any Contracting State in re­spect of which the designation fee has not been paid in due time shall be deemed to be withdrawn.

(3) If the European Patent Office notes that the appli­cation or the designation of a Contracting State is deemed to be withdrawn under paragraph 1 or 2, it shall communicate this to the applicant. Rule 69, para­graph 2, shall apply mutatis mutandis. The loss of rights shall be deemed not to have occurred if, within two months of notification of the communication un­der sentence1, the omitted act is completed and a sur­charge is paid.

Rule 109

Amendment of the application

Without prejudice to Rule86, paragraphs 2 to 4, the application may be amended once, within a non-extendable period of one month as from notification of a communication informing the applicant accordingly. The application as amended shall serve as the basis for any supplementary search which has to be per­formed under Article157, paragraph2.

Rule110

Claims incurring fees

Consequence of non-payment

(1) If the application documents on which the Euro­pean grant procedure is to be based comprise more than ten claims, a claims fee shall be payable for the eleventh and each subsequent claim within the period provided for in Rule107, paragraph1.

(2) Any claims fees not paid in due time may still be validly paid within a non-extendable period of grace of one month as from notification of a communication pointing out the failure to pay. If within this period amended claims are filed, the claims fees due shall be computed on the basis of such amended claims.

(3) Any claims fees paid within the period provided for in paragraph 1 and which are in excess of those due under paragraph2, second sentence, shall be re­funded.

(4) Where a claims fee is not paid in due time, the claim concerned shall be deemed to be abandoned.

Rule111

Examination of certain formal requirements by the European Patent Office

(1) If the data concerning the inventor prescribed in Rule17, paragraph1, have not yet been submitted at the expiry of the period provided for in Rule107, para­graph 1, the European Patent Office shall invite the ap­plicant to furnish the data within such period as it shall specify.

(2) Where the priority of an earlier application is claimed and the file number or copy provided for in Article88, paragraph 1, and Rule 38, paragraphs 1 to 3, have not yet been submitted at the expiry of the pe­riod provided for in Rule 107, paragraph 1, the Euro­pean Patent Office shall invite the applicant to furnish the number or copy of the earlier application within such period as it shall specify. Rule 38, paragraph4, shall apply.

(3) If at the expiry of the period provided for in Rule 107, paragraph 1, a sequence listing as prescribed in Rule 5.2 of the Regulations under the Cooperation Treaty is not available to the European Patent Office, or does not conform to the prescribed standard, or has not been filed on the prescribed data carrier, the appli­cant shall be invited to file a sequence listing con­form­ing to the prescribed standard or on the pre­scribed data carrier within such period as the Euro­pean Patent Office shall specify.

Rule 112

Consideration of unity by the European Patent Office

If only a part of the international application has been searched by the International Searching Authority because that Authority considered that the application did not comply with the requirement of unity of inven­tion, and the applicant did not pay all additional fees according to Article 17, paragraph 3(a), of the Coop­eration Treaty within the prescribed time limit, the European Patent Office shall consider whether the application complies with the requirement of unity of invention. If the European Patent Office considers that this is not the case, it shall inform the applicant that a European search report can be obtained in respect of those parts of the international application which have not been searched if a search fee is paid for each in­vention in­volved within a period specified by the European Pat­ent Office which may not be shorter than two weeks and may not exceed six weeks. The Search Division shall draw up a European search re­port for those parts of the international application which relate to inven­tions in respect of which search fees have been paid. Rule46, paragraph2, shall apply mutatis mutandis.