Uredba o ratifikaciji Pravilnika o izvajanju Konvencije o podeljevanju evropskih patentov
OBJAVLJENO V: Uradni list RS (mednarodne) 17-43/2003, stran 989 DATUM OBJAVE: 14.7.2003
RS (mednarodne) 17-43/2003
O RATIFIKACIJI PRAVILNIKA O IZVAJANJU KONVENCIJE O PODELJEVANJU
EVROPSKIH PATENTOV
1. člen
2. člen
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 Article 134, 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 recognised.
(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 recognised, 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 paragraph 1 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-ŕ-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 6 July 1998 on the legal protection of biotechnological inventions shall be used as a supplementary means of interpretation.
(2) “Biotechnological inventions“ are inventions which concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used.
(3) “Biological material“ means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system.
(4) “Plant variety“ means any plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety right are fully met, can be:
(a) defined by the expression of the characteristics that results from a given genotype or combination of genotypes,
(b) distinguished from any other plant grouping by the expression of at least one of the said characteristics, and
(c) considered as a unit with regard to its suitability for being propagated unchanged.
(5) A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection.
(6) “Microbiological process“ means any process involving or performed upon or resulting in microbiological material.
Rule 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 recommended 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 Article 83 if:
(a) a sample of the biological material has been deposited with a recognised 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 authorised the applicant to refer to the deposited biological material in the application and has given his unreserved and irrevocable consent to the deposited material being made available to the public in accordance with this Rule.
(2) The information referred to in paragraph 1(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 Article 128, paragraph 2, prior to that date. Subject to paragraph 4, 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-ŕ-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 paragraph 3 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 recognised as an expert by the President of the European Patent Office.
The nomination shall be accompanied by a declaration from the expert vis-ŕ-vis the applicant in which he enters into the undertaking given pursuant to paragraph 3 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 paragraph 4(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 paragraph 3 shall be submitted to the European Patent Office on a form recognised by that Office. The European Patent Office shall certify on the form that a European patent application referring to the deposit of the biological material has been filed, and that the requester or the expert nominated by him 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 recognised for the purpose of this Rule.
Rule 28a
New deposit of biological material
(1) If biological material deposited in accordance with Rule 28, paragraph 1, 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 recognised for the purposes of Rule 28, 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 recognised for the purposes of Rule 28.
(3) Where the institution with which the original deposit was made ceases to be recognised for the purposes of Rule 28, 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 26.2 cm 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 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 ˝ 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 are presented 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 recognised 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 recognised 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 authorised 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 in which the Examining Division intends to grant the European patent 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 6 unless the said fees have already been paid in accordance with 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.
Rule 57a
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.
Rule 71a
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. Rule 84 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 paragraph 1, second sentence, documents which meet the requirements of the Convention. Paragraph 1, 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 request 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 paragraphs 1 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 it may be up to six months. In certain special cases, the period may be extended upon request, presented before the expiry of such period.
Rule 84a
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 recognised 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) Paragraphs 1 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, paragraph 1(b) or paragraph 2(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 Article 54, paragraphs 3 and 4, or if it is informed of the existence of a prior right under Article 139, paragraph 2, 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 authorised 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 authorised 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 Rule 18, paragraph 1;
(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 Rule 18, paragraph 1;
(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, paragraph 2, 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 Article 61, 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 authorised shall continue to be regarded as the representative until the termination of his authorization has been communicated to the European Patent Office.
(7) Subject to any provisions to the contrary contained therein, an authorisation shall not terminate vis-ŕ-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 Article 150, paragraph 3, 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 Article 94, 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 Rule 37, paragraph 1;
(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 sentence 1, the omitted act is completed and a surcharge is paid.
Rule 109
Amendment of the application
Without prejudice to Rule 86, 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 Article 157, paragraph 2.
Rule 110
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 Rule 107, paragraph 1.
(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 paragraph 2, 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.
Rule 111
Examination of certain formal requirements by the European Patent Office
(1) If the data concerning the inventor prescribed in Rule 17, paragraph 1, 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 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 Article 88, 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, paragraph 4, 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. Rule 46, paragraph 2, shall apply mutatis mutandis.
O IZVAJANJU KONVENCIJE O PODELJEVANJU EVROPSKIH PATENTOV
z dne 5. oktobra 1973,
13. decembra 2001
PREDPISI O IZVAJANJU
I. DELA KONVENCIJE
I. poglavje
Jeziki Evropskega patentnega urada
1. pravilo
Izjeme glede določb o jeziku postopka v pisnem postopku
(1) V pisnem postopku pri Evropskem patentnem uradu lahko vsaka stranka uporablja kateri koli uradni jezik Evropskega patentnega urada. Prevod iz četrtega odstavka 14. člena se lahko vloži v katerem koli uradnem jeziku Evropskega patentnega urada.
(2) Spremembe evropske patentne prijave ali evropskega patenta morajo biti vložene v jeziku postopka.
(3) Dokumenti, ki se uporabljajo kot dokazno sredstvo pri Evropskem patentnem uradu, zlasti objave, so lahko vloženi v katerem koli jeziku. Vendar lahko Evropski patentni urad zahteva, da se v določenem roku, ki ni krajši od enega meseca, vloži prevod v enem od njegovih uradnih jezikov.
2. pravilo
Izjeme glede določb o jeziku postopka v ustnem postopku
(1) Vsaka stranka v ustnem postopku pri Evropskem patentnem uradu lahko namesto jezika postopka uporablja drug uradni jezik Evropskega patentnega urada, če vsaj en mesec pred datumom, določenim za ustni postopek, o tem obvesti Evropski patentni urad ali če zagotovi prevajanje v jezik postopka. Vsaka stranka lahko uporablja tudi enega od uradnih jezikov držav pogodbenic, če zagotovi prevajanje v jezik postopka. Evropski patentni urad lahko dovoli izjeme glede določb tega odstavka.
(2) Med ustnim postopkom lahko uslužbenci Evropskega patentnega urada namesto jezika postopka uporabljajo drug uradni jezik Evropskega patentnega urada.
(3) Pri izvajanju dokazov lahko vsaka stranka, ki jo je treba zaslišati, priča ali izvedenec, ki se ne more ustrezno izražati v enem od uradnih jezikov Evropskega patentnega urada ali držav pogodbenic, uporablja drug jezik. Če je izvajanje dokazov določeno na podlagi zahteve ene od strank v postopku, se lahko stranke, ki jih je treba zaslišati, priče ali izvedenci, ki se izražajo v jezikih, ki niso uradni jeziki Evropskega patentnega urada, zaslišijo le, če stranka, ki je vložila zahtevo, zagotovi prevajanje v jezik postopka; Evropski patentni urad lahko odobri tudi prevajanje v katerega od njegovih drugih uradnih jezikov.
(4) Ob soglasju strank in Evropskega patentnega urada se lahko v ustnem postopku uporablja kateri koli jezik.
(5) Če je treba, Evropski patentni urad na svoje stroške zagotovi prevajanje v jezik postopka ali, kjer je primerno, v svoje druge uradne jezike, razen če mora prevajanje zagotoviti ena od strank v postopku.
(6) Izjave uslužbencev Evropskega patentnega urada, strank v postopku, prič in izvedencev, dane med ustnim postopkom v enem od uradnih jezikov Evropskega patentnega urada, se vnesejo v zapisnik v tem jeziku. Izjave, dane v kakem drugem jeziku, se vnesejo v uradnem jeziku, v katerega so prevedene. Spremembe besedila opisa ali zahtevkov evropske patentne prijave ali evropskega patenta se vnesejo v zapisnik v jeziku postopka.
3. pravilo
(črtano)
4. pravilo
Jezik evropske izločene prijave
Evropske izločene prijave ali njihovi prevodi po drugem odstavku 14. člena morajo biti vloženi v jeziku postopka prejšnje evropske patentne prijave.
5. pravilo
Overitev prevodov
Kadar je treba vložiti prevod kakega dokumenta, lahko Evropski patentni urad zahteva, da se v roku, ki ga določi, vloži potrdilo, da prevod ustreza izvirnemu besedilu. Če potrdilo ni vloženo pravočasno, se šteje, da dokument ni bil prejet, razen če konvencija ne določa drugače.
6. pravilo
Roki in znižanje pristojbin
(1) Prevod iz drugega odstavka 14. člena se mora vložiti v treh mesecih po vložitvi evropske patentne prijave, vendar najkasneje trinajst mesecev po prednostnem datumu. Če gre za prevod izločene evropske patentne prijave ali nove evropske patentne prijave po pododstavku (b) prvega odstavka 61. člena, se lahko prevod vloži kadar koli v enem mesecu po vložitvi take prijave.
(2) Prevod po četrtem odstavku 14. člena mora biti vložen v enem mesecu po vložitvi dokumenta. Če je dokument ugovor ali pritožba, se ta rok, kadar je primerno, podaljša do konca roka za ugovor ali pritožbo.
(3) Znižanje prijavne pristojbine ter pristojbin za preizkus, ugovor ali pritožbo se odobri prijavitelju, imetniku patenta oziroma vložniku ugovora, ki izkoristi možnosti, predvidene v drugem in četrtem odstavku 14. člena. Znižanje se določi v pravilniku o pristojbinah v odstotnem deležu od skupnega zneska pristojbin.
7. pravilo
Pravna verodostojnost prevoda evropske patentne prijave
Pri določanju, ali predmet evropske patentne prijave ali evropskega patenta presega vsebino evropske patentne prijave, kot je bila vložena, lahko Evropski patentni urad sklepa, da je prevod po drugem odstavku 14. člena v skladu z izvirnim besedilom prijave, razen če se ne dokaže nasprotno.
II. poglavje
Organizacija Evropskega patentnega urada
8. pravilo
Klasifikacija patentov
(1) Evropski patentni urad uporablja:
(a) klasifikacijo iz 1. člena Evropske konvencije o mednarodni klasifikaciji patentov za izum z dne 19. decembra 1954, dokler ne začne veljati Strasbourški sporazum o mednarodni klasifikaciji patentov z dne 24. marca 1971;
(b) klasifikacijo iz 1. člena omenjenega Strasbourškega sporazuma, potem ko začne ta sporazum veljati.
(2) Klasifikacija iz prvega odstavka se v nadaljnjem besedilu imenuje mednarodna klasifikacija.
9. pravilo
Dodelitev nalog oddelkom na prvi stopnji
(1) Predsednik Evropskega patentnega urada določi število oddelkov za poizvedbe, oddelkov za preizkuse in oddelkov za ugovore. Tem oddelkom dodeli naloge z ozirom na mednarodno klasifikacijo in po potrebi odloča o klasifikaciji evropske patentne prijave ali evropskega patenta v skladu z mednarodno klasifikacijo.
(2) Poleg pristojnosti, ki jih imajo sprejemna pisarna, oddelki za poizvedbe, oddelki za preizkuse, oddelki za ugovore in pravni oddelek po konvenciji, lahko predsednik Evropskega patentnega urada tem oddelkom dodeli še druge naloge.
(3) Predsednik Evropskega patentnega urada lahko naloži uslužbencem, ki niso preizkuševalci tehniki ali preizkuševalci pravniki, opravljanje posameznih nalog, ki sodijo v pristojnost oddelka za preizkuse ali oddelka za ugovore in tehnično ali pravno niso težavne.
(4) Predsednik Evropskega patentnega urada lahko podeli izključne pristojnosti eni od pisarn oddelka za ugovore za določanje zneska stroškov, kot je predvideno v drugem odstavku 104. člena.
10. pravilo
Predsedstvo pritožbenih senatov
(1) Neodvisni organ v organizacijski enoti, ki vključuje pritožbene senate (“predsedstvo pritožbenih senatov”) sestavljajo podpredsednik, ki je odgovoren za pritožbene senate in je predsedujoči, ter dvanajst članov pritožbenih senatov, od katerih je šest predsedujočih, šest pa članov.
(2) Vse člane predsedstva izvolijo predsedujoči pritožbenih senatov in njihovi člani za eno poslovno leto. Če predsedstva ni mogoče sestaviti v celoti, so na prazna mesta imenovani predsedujoči in člani z najdaljšim stažem.
(3) Predsedstvo sprejme poslovnik pritožbenih senatov in poslovnik za izvolitev in imenovanje svojih članov. Predsedstvo tudi svetuje podpredsedniku, ki je odgovoren za pritožbene senate, glede zadev, ki se nanašajo na delovanje pritožbenih senatov na splošno.
(4) Pred začetkom vsakega poslovnega leta predsedstvo, razširjeno tako, da vključuje vse predsedujoče, dodeli naloge pritožbenim senatom. V isti sestavi odloča o sporih med dvema ali več pritožbenimi senati glede dodelitve nalog. Razširjeno predsedstvo imenuje stalne člane različnih pritožbenih senatov in njihove namestnike. Vsak član pritožbenega senata je lahko imenovan za člana več pritožbenih senatov. Če je treba, se lahko ti ukrepi med poslovnim letom spremenijo.
(5) Predsedstvo lahko sprejme odločitev le, če je navzočih vsaj pet njegovih članov; med njimi morajo biti podpredsednik, ki je odgovoren za pritožbene senate, ali njegov namestnik in predsedujoča dveh pritožbenih senatov. Če gre za naloge iz četrtega odstavka, mora biti navzočih devet članov, vključno s podpredsednikom, ki je odgovoren za pritožbene senate, ali njegovim namestnikom in predsedujočimi treh pritožbenih senatov. Odločitve se sprejemajo z večino glasov; če je število glasov za in proti enako, je odločilen glas predsedujočega ali njegovega namestnika. Vzdržani glasovi se ne upoštevajo.
(6) Upravni svet lahko dodeli naloge iz pododstavka (c) osmega odstavka 134. člena pritožbenim senatom.
11. pravilo
Porazdelitev nalog pri razširjenem pritožbenem senatu in sprejetje njegovega pravilnika
(1) Pred začetkom vsakega poslovnega leta člani razširjenega pritožbenega senata, ki niso bili imenovani po drugem odstavku 160. člena, imenujejo stalne člane razširjenega pritožbenega senata in njihove namestnike.
(2) Člani razširjenega pritožbenega senata, ki niso bili imenovani po drugem odstavku 160. člena, sprejmejo poslovnik razširjenega pritožbenega senata.
(3) Odločitve o zadevah, omenjenih v prvem in drugem odstavku, se lahko sprejmejo le, če je navzočih vsaj pet članov, vključno s predsedujočim razširjenega pritožbenega senata ali njegovim namestnikom; če je število glasov za in proti enako, je odločilen glas predsedujočega ali njegovega namestnika. Vzdržani glasovi se ne upoštevajo.
12. pravilo
Upravna organiziranost Evropskega patentnega urada
(1) Oddelki za preizkuse in oddelki za ugovore so upravno združeni v direkcije, katerih število določi predsednik Evropskega patentnega urada.
(2) Direkcije, pravni oddelek, pritožbeni senati in razširjeni pritožbeni senat ter upravne službe Evropskega patentnega urada so upravno združeni v generalne direkcije. Sprejemna pisarna in oddelki za poizvedbe so upravno združeni v eno generalno direkcijo.
(3) Vsako generalno direkcijo vodi podpredsednik. O imenovanju podpredsednika generalne direkcije odloči upravni svet po posvetu s predsednikom Evropskega patentnega urada.