21 AVRIL 2007. - An Act to amend the Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973, last revised on 17 December 1991, made in Munich on 29 November 2000 (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Act revising the Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973, last revised on 17 December 1991, made in Munich on 29 November 2000, will come out its full and full effect.
The Protocol on Jurisdiction and Recognition of Decisions on the Right to obtain the European Patent and the Protocol on the Privileges and Immunities of the European Patent Organisation, annexed to the Convention on the Grant of European Patents of 5 October 1973 and approved by the Act of 8 July 1977, continue to be fully effective.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 21 April 2007.
ALBERT
By the King:
Minister of Foreign Affairs,
K. DE GUCHT
Minister of Economy,
Mr. VERWILGHEN
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) 2006-2007 session.
Senate.
Documents. - Bill tabled on 14 November 2007, No. 3-1909/1. Report, no. 3-1909/2.
Annales parliamentarians. - Discussion and voting. Session of February 8, 2007.
House of Representatives.
Documents. - Project transmitted by the Senate, No. 51-2907/1. - Text adopted in plenary and subject to Royal Assent, No. 51-2907/2.
Annales parliamentarians. - Discussion and voting. Session of 1^er March 2007.

Act revising the Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973, last revised on 17 December 1991
PREAMBULE
States parties to the European Patent Convention
Considering that the cooperation between the European States established on the basis of the European Patent Convention and the Single Patent Procedure established by the European Patent Convention makes an essential contribution to the legal and economic integration of Europe,
Desirous of ensuring an even more effective promotion of innovation and economic development in Europe through the creation of bases for further extension of the European patent system,
Wishing to adapt, in the light of the increasing internationalization in patents, the European Patent Convention to the technical and legal developments since its adoption,
The following provisions were agreed:
Amendment of the European Patent Convention
Article 1^er
The European Patent Convention is amended to read:
1. The following new article 4bis is inserted after article 4:
Conference of Ministers of Contracting States
Article 4bis
A conference of the Ministers of the Contracting States concerned with patents meets at least every five years to discuss issues relating to the Organization and the European patent system.
2. Section 11 is replaced by the following text:
Appointment of senior staff
Article 11
(1) The President of the European Patent Office is appointed by the Board of Directors.
(2) The Vice-Presidents are appointed by the Board of Directors, the President of the European Patent Office heard.
(3) The members of the Boards of Appeal and the Enlarged Board of Appeal, including their chairs, are appointed by the Board of Directors on the proposal of the President of the European Patent Office. They may be reappointed by the Board of Directors, the President of the European Patent Office heard.
(4) The Board of Directors shall exercise disciplinary power over the officers referred to in paragraphs 1 to 3 of this section.
(5) The Board of Directors may, the President of the European Patent Office heard, also appoint as members of the Enlarged Board of Appeal lawyers from the national courts or quasi-judicial authorities of the Contracting States, who may continue to assume their judicial functions at the national level. They are appointed for a period of three years and may be reappointed.
3. Section 14 is replaced by the following text:
Languages of the European Patent Office, European patent applications and other documents
Article 14
(1) The official languages of the European Patent Office are German, English and French.
(2) Any European patent application must be filed in one of the official languages or, if filed in another language, translated into one of the official languages, in accordance with the Implementing Regulations. Throughout the proceedings before the European Patent Office, this translation may be made in accordance with the text of the application as filed. If the required translation has not been filed in a timely manner, the application is deemed to be withdrawn.
(3) The official language of the European Patent Office in which the European patent application has been filed or translated must be used as a language of the proceedings, unless otherwise provided by the Implementing Regulations, in all proceedings before the European Patent Office.
(4) Individuals and legal entities having their domicile or seat in a Contracting State having a language other than German, English or French as an official language, and nationals of that State having their domicile abroad may file, in an official language of that State, documents to be produced within a specified period of time. However, they are required to produce a translation into an official language of the European Patent Office in accordance with the Implementing Regulations. If a piece that is not included in the documents of the European patent application is not produced in the prescribed language or if a required translation is not produced within the time limits, the part is deemed not to have been produced.
(5) European patent applications are published in the language of the procedure.
(6) The European patent fascicles are published in the language of the procedure and include a translation of the claims in the other two official languages of the European Patent Office.
(7) Published in the three official languages of the European Patent Office:
(a) the European Patent Bulletin;
(b) the Official Journal of the European Patent Office.
(8) Registrations to the European Patent Register are made in the three official languages of the European Patent Office. In case of doubt, registration in the language of the procedure is believed.
4. Section 16 is replaced by the following text:
Deposit Section
Article 16
The filing section is competent to review European patent applications at the time of filing and the formal requirements.
5. Section 17 is replaced by the following text:
Research Divisions
Article 17
Research divisions are competent to prepare European research reports.
6. Section 18 is replaced by the following text:
Examining divisions
Article 18
(1) Examining divisions are competent to review European patent applications.
(2) A Examining Division consists of three technical examiners. However, the instruction of the European patent application is, as a general rule, entrusted to one of the Examiners of the division. Oral proceedings are the competence of the Examining Division itself. If it considers that the nature of the decision requires it, the Examining Division is supplemented by a legal reviewer. In the event of a vote-sharing, the President of the Examining Division is preponderant.
7. Section 21 is replaced by the following text:
Boards of Appeal
Article 21
(1) The Boards of Appeal are competent to review appeals against decisions of the filing section, review divisions, opposition divisions and the legal division.
(2) In the case of an appeal against a decision of the filing section or the legal division, the board of appeal consists of three legal members.
(3) In the case of an appeal against a decision of a Examining Division, the Board of Appeal consists of:
(a) two technical members and a legal member when the decision is related to the rejection of a European patent application or the issuance, limitation or revocation of a European patent and was taken by a Examining Division composed of less than four members;
(b) three technical members and two legal members when the decision was taken by a four-member Examining Division or if the Board of Appeal considers that the nature of the appeal requires it;
(c) three legal members in other cases.
(4) In the case of an appeal against a decision of an opposition division, the board of appeal consists of:
(a) two technical members and one legal member when the decision was taken by a three-member opposition division;
(b) three technical members and two legal members when the decision was taken by an opposition division composed of four members or if the board of appeal considers that the nature of the appeal requires it.
8. Section 22 is replaced by the following text:
Enlarged Board of Appeal
Article 22
(1) The Enlarged Board of Appeal is competent to:
(a) To decide on the legal issues submitted to it by the Boards of Appeal;
(b) provide advice on legal matters submitted to it by the President of the European Patent Office in accordance with Article 112;
(c) decide on requests for review of decisions of the Boards of Appeal in accordance with Article 112bis.
(2) In the procedures provided for in paragraph 1^er, letters (a) and (b), the Enlarged Board of Appeal consists of five legal members and two technical members. In the procedures set out in paragraph 1, letter (c), the Enlarged Board of Appeal consists of three or five members as provided for in the Implementing Regulations. In all proceedings, the presidency is provided by a legal member.
9. Section 23 is replaced by the following text:
Independence of room members
Article 23
(1) Members of the Enlarged Board of Appeal and Boards of Appeal shall be appointed for a period of five years and shall not be relieved of their functions during that period, except on serious grounds and if the Board of Directors, upon a proposal by the Enlarged Board of Appeal, makes a decision to that effect. Without prejudice to the provisions of the first sentence, the term of office of the members of the boards of appeal shall expire in the event of resignation or retirement in accordance with the statute of the officials of the European Patent Office.
(2) Members of the chambers may not be members of the filing section, examination divisions, opposition divisions or the legal division.
(3) In their decisions, members of the chambers are not bound by any instruction and must comply only with the provisions of this Convention.
(4) The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be decided in accordance with the Implementing Regulations. They are subject to approval by the Board of Directors.
10. Section 33 is replaced by the following text:
Competence of the Board of Directors in certain cases
Rule 33
(1) The Board of Directors has jurisdiction to amend:
(a) the provisions of this Convention to the extent that they set the time limit;
(b) the provisions of Part II to Part 8 and Part 10 of this Convention to ensure their conformity with an international patent treaty or European Community patent law;
(c) the provisions of the Implementing Regulations.
(2) The Board of Directors has jurisdiction, in accordance with this Convention, to decide and amend:
(a) the financial regulations;
(b) the status of civil servants and the regime applicable to other officers of the European Patent Office, the scale of their remuneration, and the nature and rules of granting of the incidental benefits;
(c) the settlement of pensions and any increase in existing pensions for salary increases;
(d) the tax regulations;
(e) its rules of procedure.
(3) Notwithstanding the provisions of Article 18, paragraph 2, the Board of Directors has jurisdiction to decide, if the experience warrants, that in certain categories of cases, the Examining Divisions shall be composed of a single technical examiner. This decision can be reported.
(4) The Governing Council has jurisdiction to authorize the President of the European Patent Office to negotiate and, subject to its approval, to conclude, on behalf of the European Patent Organisation, agreements with States or intergovernmental organizations and with documentation centres established under agreements with these organizations.
(5) The Board of Directors may not make a decision under paragraph 1^er(b)
- in respect of an international treaty before the entry into force of that treaty;
- in respect of a legislative act of the European Community, before its entry into force or, where such act provides for a period for its transfer, before the expiry of that period.
11. Section 35 is replaced by the following text:
Votes
Rule 35
(1) Subject to paragraphs 2 and 3, the Governing Council shall make its decisions by a simple majority of the Contracting States represented and voting.
(2) Requires the majority of three-quarters of the Contracting States represented and voting, the decisions that the Governing Council is competent to take under Article 7, of Article 11, paragraph 1^erArticle 33, paragraphs 1^er, letters (a) and (c) and 2 to 4, of article 39, paragraph 1^erArticle 40, paragraphs 2 and 4, section 46, section 134bis, section 149bis, paragraph 2, section 152, section 153, paragraph 7, section 166 and section 172.
(3) Requires the unanimity of the voting Contracting States, the decisions that the Governing Council is competent to take under Article 33, paragraph 1^er(b) The Governing Council shall take such decisions only if all Contracting States are represented. A decision under section 33, paragraph 1^erletter (b) does not take effect if a Contracting State declares, within twelve months of the date of the decision, that it wishes not to be bound by that decision.
(4) Abstention is not considered a vote.
12. Section 37 is replaced by the following text:
Financing of the budget
Rule 37
The Organization's budget is funded:
(a) by the Organization's own resources;
(b) payment by the Contracting States for the maintenance of European patents collected in those States;
(c) possibly by exceptional financial contributions from Contracting States;
(d) if any, by the revenues provided for in section 146;
(e) where applicable and exclusively for tangible capital assets, borrowings from third parties and secured by land or buildings;
(f) where appropriate, by third-party funds for specific projects.
13. Section 38 is replaced by the following text:
Organization's own resources
Rule 38
The Organization's own resources include:
(a) all revenues from taxes and other resources and reserves of the Organization;
(b) the resources of the Pension Reserve Fund, which must be considered as a special heritage of the Organization to assist the pension plan by establishing appropriate reserves.
14. Section 42 is replaced by the following text:
Budget
Rule 42
(1) The Organization's budget must be balanced. It will be based on generally accepted accounting principles, as defined in the Financial Regulations. As appropriate, amending or additional budgets may be established.
(2) The budget is established in the account unit established by the Financial Regulations.
15. Section 50 is replaced by the following text:
Financial regulations
Rule 50
The financial regulations include:
(a) the terms and conditions for the preparation and execution of the budget and the accountability and audit of the accounts;
(b) the terms and procedure whereby payments and contributions under Article 37, as well as advances under Article 41, shall be made available to the Organization by the Contracting States;
(c) the rules and the organization of control and the responsibility of ordering and accounting;
(d) interest rates under sections 39, 40 and 47;
(e) the terms and conditions for calculating contributions under section 146;
(f) the composition and tasks of a budget and finance commission that should be established by the Board of Directors;
(g) generally accepted accounting principles based on the annual budget and financial statements.
16. Section 51 is replaced by the following text:
Taxes
Rule 51
(1) The European Patent Office may collect taxes for any official task or procedure performed under this Agreement.
(2) Payment times for taxes other than those set out in this Agreement shall be set out in the Implementing Regulations.
(3) When the enforcement regulation prescribes payment of a tax, it also provides the consequences of default on time.
(4) The tax regulations include the amount of taxes and their method of collection.
17. Section 52 is replaced by the following text:
Patentable inventions
Rule 52
(1) European patents are granted for any invention in all technological fields, provided that it is new, that it involves inventive activity and that it is susceptible to industrial application.
(2) Not considered inventions within the meaning of paragraph 1^er including:
(a) discoveries and scientific theories and mathematical methods;
(b) aesthetic creations;
(c) plans, principles and methods in the exercise of intellectual, game and economic activities, as well as computer programs;
d) information presentations.
(3) Paragraph 2 excludes the patentability of the elements it enumerates only to the extent that the European patent application or the European patent concerns only one of these elements, considered as such.
18. Section 53 is replaced by the following text:
Exceptions to patentability
Rule 53
European patents are not issued for:
(a) inventions whose commercial exploitation would be contrary to public order or good morals, such a contradiction may not be deduced solely by the fact that exploitation is prohibited, in all Contracting States or in many of them, by a legal or regulatory provision;
(b) plant varieties or animal breeds as well as essentially biological processes to obtain plants or animals, this provision does not apply to microbiological processes and products obtained by these processes;
(c) the methods of surgical or therapeutic treatment of the human or animal body and the diagnostic methods applied to the human or animal body, this provision does not apply to products, including substances or compositions, for the implementation of one of these methods.
19. Section 54 is replaced by the following text:
New
Rule 54
(1) An invention is considered new if it is not understood in the state of the technique.
(2) The state of the technique is constituted by anything made available to the public before the date of filing the European patent application by a written or oral description, use or any other means.
(3) Also considered to be included in the state of the art, the content of European patent applications as filed, which have a filing date prior to that referred to in paragraph 2 and have only been published on that date or only on a later date.
(4) Paragraphs 2 and 3 do not exclude the patentability of a substance or composition included in the state of the technique for the implementation of a method referred to in section 53, letter (c), provided that its use for any of these methods is not included in the state of the technique.
(5) Paragraphs 2 and 3 also do not exclude the patentability of a substance or composition referred to in paragraph 4 for any specific use in any method referred to in section 53, letter (c), provided that such use is not included in the state of the technique.
20. Section 60 is replaced by the following text:
Right to European patent
Rule 60
(1) The right to the European patent belongs to the inventor or to his cause. If the inventor is an employee, the right to the European patent is defined according to the law of the State in which the employee exercises his or her principal activity; If the State in whose territory the principal activity is exercised cannot be determined, the applicable law is that of the State in whose territory the establishment of the employer to which the employee is attached is located.
(2) If several persons have made the invention independently of each other, the right to the European patent belongs to the one who filed the European patent application whose filing date is the oldest, provided that the first application has been published.
(3) In proceedings before the European Patent Office, the applicant is deemed to be entitled to exercise the right to the European patent.
21. Section 61 is replaced by the following text:
European patent application filed by an unlicensed person
Rule 61
(1) If a decision in force of a finding has recognized the right to obtain the European patent to a person other than the applicant, that person may, in accordance with the Implementing Regulations:
(a) continue, in the place and place of the applicant, the procedure for the European patent application, taking this request on its behalf,
(b) file a new European patent application for the same invention, or
(c) request the rejection of the European patent application.
(2) Article 76, paragraph 1, shall apply to any new European patent application filed under paragraph 1 (b).
22. Section 65 is replaced by the following text:
European patent translation
Rule 65
(1) Any Contracting State may prescribe, where the European patent granted, maintained as amended or limited by the European Patent Office is not written in any of its official languages, that the patent holder shall provide to its central industrial property service a translation of the patent as granted, amended or limited in any of its official languages, to its choice, or, to the extent that the State has imposed the use of a specified language, The translation must be produced within three months of the date of publication in the European Patent Bulletin of the mention of the grant of the European patent or its maintenance as amended, or of its limitation, unless the State concerned gives a longer period of time.
(2) Any Contracting State that has adopted provisions under paragraph 1 may prescribe that the patent holder shall pay, within a period fixed by that State, all or part of the costs of publishing the translation.
(3) Any Contracting State may prescribe that, if the provisions adopted under paragraphs 1 and 2 are not observed, the European patent is, from the outset, deemed to have no effect in that State.
23. Section 67 is replaced by the following text:
Rights granted by the European patent application after publication
Rule 67
(1) As from its publication, the European patent application shall temporarily provide to the applicant, in the Contracting States designated in the patent application, the protection provided for in Article 64.
(2) Each Contracting State may provide that the European patent application does not provide protection under Article 64. However, the protection attached to the publication of the European patent application cannot be less than that which the relevant State legislation attaches to the mandatory publication of the non-examined national patent applications. In any event, each Contracting State shall, at the very least, provide that, from the date of publication of the European patent application, the applicant may require a reasonable compensation, as determined under the circumstances, of any person who has exploited, in that Contracting State, the invention that is the subject of the European patent application, under conditions that, under national law, would put in place its responsibility if it were a national counterfeit.
(3) Each Contracting State that does not have as an official language the language of the proceedings may provide that the provisional protection referred to in paragraphs 1^er and 2 shall be ensured only from the date on which a translation of the claims, either in one of the official languages of that State, to the choice of the applicant, or, to the extent that the State in question imposed the use of a specified official language, in that latter language:
(a) has been made accessible to the public under the conditions laid down in its national legislation, or
(b) has been handed over to the person operating in the latter the invention which is the subject of the European patent application.
(4) The effects of the European patent application in paragraphs 1^er and 2 are deemed to be null and void when the European patent application has been withdrawn, or is deemed to have been withdrawn, or has been rejected by a decision taken in force of a finding. The same is true of the effects of the European patent application in a Contracting State whose designation has been withdrawn or is deemed withdrawn.
24. Section 68 is replaced by the following text:
Effects of revocation or limitation of European patent
Rule 68
The European patent application as well as the European patent to which it gave rise are deemed not to have had the effects provided for in Articles 64 and 67 at the very least since the patent was revoked or limited during an opposition, limitation or invalidity procedure.
25. Section 69 is replaced by the following text:
Scope of protection
Rule 69
(1) The scope of protection conferred by the European patent or by the European patent application is determined by the claims. However, description and drawings are used to interpret claims.
(2) For the period up to the grant of the European patent, the scope of protection conferred by the European patent application is determined by the claims contained in the application as published. However, the European patent as granted or as amended during the opposition, limitation or invalidity proceedings retroactively determines this protection provided that it is not extended.
26. Section 70 is replaced by the following text:
Text of the European patent application or the European patent authenticating
Rule 70
(1) The text of the European patent application or the European patent in the language of the procedure is the text which is authentic in all proceedings before the European Patent Office and in all Contracting States.
(2) However, if the European patent application has been filed in a language that is not one of the official languages of the European Patent Office, this text constitutes the application as filed, within the meaning of this Agreement.
(3) Any Contracting State may provide that a translation into an official language of that State, as provided for in this Convention, is considered in that State to be the text which shall, apart from the cases of nullity proceedings, be deemed to be the text in which the European patent application or European patent in the language of translation confer less protection than that conferred by the said application or by the said patent in the language of the proceedings.
(4) Any Contracting State which makes a provision under paragraph 3,
(a) allow the applicant or the patent holder to produce a revised translation of the European patent application or European patent. This revised translation has no legal effect as long as the conditions laid down by the Contracting State under Article 65, paragraph 2 and Article 67, paragraph 3 have not been met;
(b) may provide that a person who in that State has, in good faith, begun to exploit an invention or has made effective and serious preparations for that purpose, without that exploitation constitutes a counterfeit of the application or patent in the text of the original translation, may, after the revised translation has taken effect, continue its operation in his or her enterprise free of charge or for the purposes of the latter.
27. Section 75 is replaced by the following text:
Filing of European patent application
Rule 75
(1) The European patent application may be filed:
(a) either with the European Patent Office;
(b) if the legislation of a Contracting State permits, and subject to the provisions of Article 76, paragraph 1^erat the central office of industrial property or other competent services of that State. Any such application shall have the same effect as if it had been filed on the same date at the European Patent Office.
(2) Paragraph 1^er cannot hinder the application of the legislative or regulatory provisions which, in a Contracting State:
(a) govern inventions which may not, because of their object, be communicated abroad without prior authorization from the competent authorities of the State in question, or
(b) prescribing that any patent application must initially be filed with a national authority, or submitting to a prior authorization the direct filing with another authority.
28. Section 76 is replaced by the following text:
European divisional applications
Rule 76
(1) Any European patent divisional application must be filed directly with the European Patent Office in accordance with the Implementing Regulations. It may only be filed for items that do not extend beyond the content of the previous application as filed; to the extent that this requirement is met, the divisional application is considered to be filed on the date of filing of the previous application and is entitled to priority.
(2) All Contracting States designated in the previous application when filing a European divisional patent application are deemed to be designated in the divisional application.
29. Section 77 is replaced by the following text:
Transmission of European patent applications
Rule 77
(1) The central office of the industrial property of the Contracting State shall transmit to the European Patent Office the European patent applications filed with the said service or with any other competent service of that State, in accordance with the Implementing Regulations.
(2) Any European patent application whose object has been put in secret is not transmitted to the European Patent Office.
(3) Any European patent application that is not forwarded to the European Patent Office within the time limits is deemed withdrawn.
30. Section 78 is replaced by the following text:
Conditions for European patent application
Rule 78
(1) The European patent application must contain:
(a) a request for the grant of a European patent;
(b) a description of the invention;
(c) one or more claims;
(d) drawings referred to in the description or claims;
(e) a shortened,
and meet the conditions set out in the Implementing Regulations.
(2) The European patent application gives rise to the payment of the deposit tax and the search fee. If the filing fee or the search fee has not been paid on time, the application is deemed to be withdrawn.
31. Section 79 is replaced by the following text:
Designation of Contracting States
Rule 79
(1) All Contracting States parties to this Convention when filing the European patent application are deemed to be designated in the application for the grant of the European patent.
(2) The designation of a Contracting State may result in the payment of a designation fee.
(3) The designation of a Contracting State may be withdrawn at any time until the grant of the European patent.
32. Section 80 is replaced by the following text:
Deposit date
Rule 80
The date of filing of a European patent application is the date on which the conditions laid down in the Implementing Regulations are met.
33. Section 86 is replaced by the following text:
Annual fees for European patent application
Rule 86
(1) Annual fees must, in accordance with the Implementing Regulations, be paid to the European Patent Office for any European patent application. These taxes are due for the third year, from the date of filing of the application, and for each of the following years. If an annual fee has not been paid on time, the application is deemed to be withdrawn.
(2) No annual fee is payable after the payment of the one to be paid for the year in which the mention of the grant of the European patent is published.
34. Section 87 is replaced by the following text:
Right of priority
Rule 87
(1) Who has regularly deposited in or for
(a) a State Party to the Paris Convention for the Protection of Industrial Property or
(b) a member of the World Trade Organization,
a patent application for invention, utility model or utility certificate, or the applicant's cause, shall, in order to file a European patent application for the same invention, have a priority right for a period of twelve months from the date of filing of the first application.
(2) It is recognized as giving rise to the right of priority, any deposit having the value of a regular national deposit under the national legislation of the State in which it was made or bilateral or multilateral agreements, including this Convention.
(3) By regular national filing, any deposit that is sufficient to establish the date on which the application was filed, regardless of the subsequent fate of the application.
(4) Is considered first application, the date of filing is the starting point of the priority period, a subsequent application having the same purpose as a previous first application, filed in or for the same State, provided that this earlier application, at the date of filing of the subsequent application, has been withdrawn, abandoned or refused, without being subject to public inspection and without letting any rights remain, and that it has not yet served the basis of the claim. The previous application can no longer serve as a basis for the claim of priority rights.
(5) If the first deposit has been made with an industrial property service that is not bound by the Paris Convention for the Protection of Industrial Property or the Agreement establishing the World Trade Organization, paragraphs 1^er to 4 shall apply if, following a communication from the President of the European Patent Office, this service recognizes that a first filing with the European Patent Office gives rise to a priority right subject to conditions and having effects equivalent to those provided for in the Paris Convention.
35. Section 88 is replaced by the following text:
Prioritization
Rule 88
(1) An applicant who wishes to avail himself of the priority of an earlier filing is required to file a priority statement and any other required document in accordance with the Implementing Regulations.
(2) Multiple priorities can be claimed for a European patent application even if they come from different states. Where applicable, multiple priorities may be claimed for the same claim. If multiple priorities are claimed, the starting-point deadline is calculated from the date of the oldest priority.
(3) When one or more priorities are claimed for the European patent application, the right of priority covers only the elements of the European patent application that are contained in the application or in applications whose priority is claimed.
(4) If certain elements of the invention for which priority is claimed are not included in the claims made in the previous application, it is sufficient, in order for the priority to be granted, that all parts of the previous application disclose in a specific way the said elements.
36. Section 90 is replaced by the following text:
Review at filing and as to form requirements
Rule 90
(1) The European Patent Office shall examine in accordance with the Implementing Regulations if the application meets the conditions for a filing date.
(2) If a filing date cannot be granted after the examination under subsection 1^er has been made, the application is not processed as a European patent application.
(3) If a filing date has been granted to the European patent application, the European Patent Office shall examine in accordance with the Implementing Regulations if it is satisfied with the requirements of Articles 14, 78, 81 and, where applicable, Articles 88, paragraph 1^er and 133, paragraph 2, as well as any other requirement under the Implementing Regulations.
(4) When the European Patent Office finds, during the examination conducted under paragraphs 1^er or 3, the existence of irregularities to which it may be remedied, it gives the applicant the opportunity to remedy these irregularities.
(5) When it is not addressed to an irregularity noted in the examination conducted under paragraph 3, the European patent application is rejected. When irregularity concerns the right of priority, it results in the loss of this right for the application.
37. Section 91 is deleted.
38. Section 92 is replaced by the following text:
Establishment of the European research report
Rule 92
The European Patent Office shall prepare and publish, in accordance with the Implementing Regulations, a European search report relating to the European patent application on the basis of claims, with due regard to the description and, where appropriate, existing drawings.
39. Section 93 is replaced by the following text:
Publication of European patent application
Rule 93
(1) The European Patent Office publishes the European patent application as soon as possible
(a) after the expiry of a period of eighteen months from the filing date or, if a priority has been claimed, from the priority date; or
(b) before the expiry of this period upon request of the applicant.
(2) The European patent application is published on the same date as the European patent fascicle when the decision on the grant of the European patent takes effect before the expiry of the period referred to in paragraph 1^er(a)
40. Section 94 is replaced by the following text:
Examination of European patent application
Rule 94
(1) Upon request, the European Patent Office shall examine in accordance with the Implementing Regulations if the European patent application and the invention which is the subject of the application meets the conditions laid down in this Agreement. The application is considered to be filed only after payment of the examination fee.
(2) Where the request is not filed on time, the application is deemed to be withdrawn.
(3) If it is the result of the examination that the application or invention that is the subject of this Agreement does not meet the requirements of this Agreement, the Examining Division shall invite the applicant, as often as necessary, to submit its observations and, subject to the provisions of Article 123, paragraph 1^er, to amend the application.
(4) If the applicant fails to respond to a notification from the Examining Division, the application is deemed to be withdrawn.
41. Articles 95 and 96 are deleted.
42. Section 97 is replaced by the following text:
Patent issue or rejection of application
Rule 97
(1) If the Examining Division considers that the European patent application and the invention which is the subject of this Agreement meet the requirements of this Convention, it decides to grant the European patent provided that the requirements of the Implementing Regulations are met.
(2) If the Examining Division considers that the application for a European patent or the invention that is the subject of the application does not meet the conditions set out in this Convention, it rejects the application, unless different sanctions are provided for in this Convention.
(3) The decision on the grant of the European patent takes effect on the day of publication in the European Patent Bulletin of the mention of grant.
43. Section 98 is replaced by the following text:
Publication of the European patent fascicle
Rule 98
The European Patent Office publishes the fascicle of the European patent as soon as possible after the publication of the mention of the grant of the European patent to the European Patent Bulletin.
44. The title of Part 5 is replaced by the following:
PART
PROCEDURE FOR PROPOSAL AND LIMITATION
45. Section 99 is replaced by the following text:
Opposition
Rule 99
(1) Within nine months of the publication of the mention of the grant of the European patent in the European Patent Bulletin, any person may object to this patent with the European Patent Office in accordance with the Implementing Regulations. The opposition is deemed to be formed only after payment of the opposition fee.
(2) The opposition to the European patent affects this patent in all Contracting States in which it produces its effects.
(3) Third parties who objected are parties, together with the patentee, to the opposition proceedings.
(4) If a person proves that, in a Contracting State, it is registered in the patent registry, by virtue of a judgment passed in force of a judgment, at the place and place of the previous holder, it is, upon request, substituted for the latter for that State. Notwithstanding the provisions of section 118, the previous patent holder and the person who asserts his or her rights are not considered to be co-owners unless they both request to be co-owners.
46. Section 101 is replaced by the following text:
Examination of opposition - Revocation or maintenance of European patent
Rule 101
(1) If the opposition is admissible, the Opposition Division shall examine in accordance with the Implementing Regulations if at least one opposition ground referred to in Article 100 is opposed to the maintenance of the European patent. During this review, the Opposition Division invites the parties, as often as necessary, to submit their comments on the notifications it has sent to them or on communications from other parties.
(2) If the Opposition Division considers that at least one opposition ground is opposed to the maintenance of the European patent, it revokes the patent. Otherwise, it rejects the opposition.
(3) If the Opposition Division considers that, in the light of the changes made by the patent holder during the opposition proceedings, the patent and the invention which is the subject of it
(a) meet the requirements of this Agreement, it decides to maintain the patent as amended, provided that the requirements of the Implementing Regulations are met;
(b) do not meet the requirements of this Convention, it revokes the patent.
47. Section 102 is deleted.
48. Section 103 is replaced by the following text:
Publication of a new fascicle of the European patent
Rule 103
If the European patent has been maintained as amended under Article 101, paragraph 3 (a), the European Patent Office shall publish a new European Patent Paper as soon as possible after the mention of the opposition decision has been published in the European Patent Bulletin.
49. Section 104 is replaced by the following text:
Fees
Rule 104
(1) Each of the parties to the opposition proceedings shall bear the costs it has exposed, unless the Opposition Division, in accordance with the Implementing Regulations, stops, to the extent that fairness requires, a different distribution of costs.
(2) The Implementing Regulations determine the procedure for setting costs.
(3) Any final decision of the European Patent Office fixing the amount of the fee shall, for the purpose of its execution in the Contracting States, be deemed to be a decision rendered in force by a civil court of the State in whose territory such execution shall be prosecuted. The control of such a decision can only concern its authenticity.
50. Section 105 is replaced by the following text:
Intervention by the alleged offender
Rule 105
(1) Any third party may, after the expiry of the opposition period, intervene in the opposition proceedings in accordance with the Implementing Regulations, provided that it provides evidence
(a) that a counterfeit action based on this patent has been brought against it, or
(b) that after having been required by the patent proprietor to cease the alleged infringement of this patent, he introduced an action against the patent holder to indicate that he is not a counterfeit.
(2) An admissible intervention is assimilated to an opposition.
51. The following new articles 105bis, 105ter and 105quater are inserted following section 105:
Application for limitation or revocation
Article 105 bis
(1) Upon application by the patent holder, the European patent may be revoked or limited in the form of a modification of the claims. The application must be submitted to the European Patent Office in accordance with the Implementing Regulations. It is deemed to be filed only when the limitation or revocation fee has been paid.
(2) The application cannot be submitted until an opposition procedure relating to the European patent is pending.
Limitation or revocation of the European patent
Rule 105ter
(1) The European Patent Office examines whether the requirements of the Implementing Regulations for a limitation or revocation of the European patent are met.
(2) If the European Patent Office considers that the application for limitation or revocation of the European patent meets these conditions, it decides, in accordance with the Implementing Regulations, to limit or revoke the European patent. Otherwise, he rejects the request.
(3) The decision on limitation or revocation affects the European patent with effect in all Contracting States for which it was granted. It takes effect on the date of publication in the European Patent Bulletin of the mention of the decision.
Publication of a modified European patent fascicle
Article 105quater
When the European patent has been limited under Article 105ter, paragraph 2, the European Patent Office shall publish the amended European patent booklet as soon as possible after the mention of the limitation to the European Patent Bulletin.
52. Section 106 is replaced by the following text:
Decisions that may be appealed
Rule 106
(1) Decisions of the filing section, review divisions, opposition divisions and the legal division are subject to appeal. The appeal has a suspensive effect.
(2) A decision that does not terminate a proceeding with respect to one of the parties may be appealed only with the final decision, unless the decision provides for an independent remedy.
(3) The right to appeal against decisions relating to the apportionment or fixing of costs of the opposition proceedings may be limited in the Implementing Regulations.
53. Section 108 is replaced by the following text:
Time and form
Rule 108
The appeal must be filed, in accordance with the Implementing Regulations, with the European Patent Office within two months from the meaning of the decision. The appeal is considered to be filed only after payment of the appeal fee. A statement of grounds for appeal must be filed within four months of the meaning of the decision, in accordance with the Implementing Regulations.
54. Section 110 is replaced by the following text:
Review of appeal
Rule 110
If the appeal is admissible, the Board of Appeal shall consider whether it is entitled to do so. The review of the appeal is conducted in accordance with the Implementing Regulations.
55. The following new article 112bis is inserted after section 112:
Request for review by the Enlarged Board of Appeal
Article 112bis
(1) Any party to an appeal procedure, the claims of which the decision of the board of appeal did not apply, may file a request for a review of the decision by the Enlarged Board of Appeal.
(2) The request can only be based on one of the following grounds:
(a) a member of the board of appeal participated in the decision in violation of article 24, paragraph 1^er or despite its exclusion pursuant to a decision under section 24, paragraph 4;
(b) a person who is not a member of the boards of appeal participated in the decision;
(c) the appeal procedure has been followed by a fundamental violation of article 113;
(d) the appeal procedure was terminated by another fundamental procedural violation as defined in the Implementing Regulations; or
(e) a criminal offence established under the conditions set out in the Implementing Regulations may have an impact on the decision.
(3) The request for review has no suspensive effect.
(4) The request must be submitted and substantiated in accordance with the Implementing Regulations. If the request is based on paragraph 2, letters (a) to (d), it must be submitted within two months of the meaning of the decision of the Board of Appeal. If the request is based on paragraph 2, letter (e), it must be submitted within two months after the criminal offence has been established and no more than five years after the decision of the Board of Appeal has been served. The application for review is not deemed to have been filed before the prescribed fee has been paid.
(5) The Enlarged Board of Appeal examines the request for review in accordance with the Implementing Regulations. If the request is substantiated, the Enlarged Board of Appeal shall revoke the review decision and shall, in accordance with the Implementing Regulations, reopen the proceedings before the Boards of Appeal.
(6) Any person in a designated Contracting State has, in good faith, in the period between the decision of the board of appeal under review and the publication of the reference to the decision of the Enlarged Board of Appeal on the request for review, commenced or made effective and serious preparations to exploit the invention that is the subject of a published European patent application or a European patent, may, as a free undertaking, pursue such an operation in the case.
56. Section 115 is replaced by the following text:
Comments by third parties
Rule 115
After the publication of the European patent application, any third party may, in any proceedings before the European Patent Office, submit, in accordance with the Implementing Regulations, observations on the patentability of the invention subject to the application or patent. A third party does not acquire the quality of a party to the procedure.
57. Section 117 is replaced by the following text:
Evidence and instruction
Article 117
(1) In proceedings before the European Patent Office, the following measures of instruction may be taken:
(a) the hearing of the parties;
(b) the request for information;
(c) the production of documents;
(d) the hearing of witnesses;
(e) expertise;
(f) descent at the scene;
(g) written statements made under the oath.
(2) The Implementing Regulations determine the instruction procedure.
58. Section 119 is replaced by the following text:
Meaning
Rule 119
Decisions, citations, notifications and communications shall be served by the European Patent Office in accordance with the Implementing Regulations. The meanings may be made, where exceptional circumstances require it, through the central services of the industrial property of the Contracting States.
59. Section 120 is replaced by the following text:
Time limits
Rule 120
The Implementing Regulations determine:
(a) the deadlines that must be observed in proceedings before the European Patent Office and which are not set out in this Convention;
(b) the method of calculating deadlines and the conditions under which they may be extended;
(c) the minimum and maximum duration of the deadlines that are provided by the European Patent Office.
60. Section 121 is replaced by the following text:
Continuation of the European patent application procedure
Rule 121
(1) Where the applicant has not observed a period of time for the European Patent Office, the applicant may request the continuation of the European patent application procedure.
(2) The European Patent Office is entitled to the application when the conditions set out in the Implementing Regulations are met. Otherwise, he rejects the request.
(3) When the request is granted, the consequences of non-observance of the time limit are deemed not to have occurred.
(4) The time limits provided for in articles 87, paragraph 1 shall be excluded from the proceedings.^er108 and 112 bis, paragraph 4, as well as the deadlines for the submission of the request for further proceedings and the request for restitutio in integrum. Implementing regulations may exclude further delays in the prosecution of proceedings.
61. Section 122 is replaced by the following text:
Restitutio in integrum
Article 122
(1) The applicant or the holder of a European patent who, although having demonstrated all the vigilance required by the circumstances, has not been able to observe a time limit with respect to the European Patent Office is, upon request, restored in its rights if the non-observance of this period directly results in the rejection of the European patent application or of a request, the fact that the European patent application is deemed to be withdrawn,
(2) The European Patent Office shall be entitled to the request where the conditions required in paragraph 1^er and the requirements of the regulations are met. Otherwise, he rejects the request.
(3) When the request is granted, the consequences of non-observance of the time limit are deemed not to have occurred.
(4) Is excluded from the restitutio in integrum, the deadline for submitting the request for restitutio in integrum. Implementing regulations may exclude other time limits from restitutio in integrum.
(5) Any person in a designated Contracting State has, in good faith, in the period between the loss of a right referred to in paragraph 1^er and the publication of the mention of the restoration of the said right, begun to exploit or made effective and serious preparations to exploit the invention that is the subject of a published European patent application or a European patent, may, as a free measure, continue this operation in its company or for the needs of its company.
(6) This article does not affect the right of a Contracting State to grant restitutio in integrum as to the time limits provided for in this Convention and to be observed vis-à-vis the authorities of that State.
62. Section 123 is replaced by the following text:
Amendments
Article 123
(1) The European patent application or the European patent may be amended in the proceedings before the European Patent Office in accordance with the Implementing Regulations. In any event, the applicant may, on its own initiative, amend the application at least once.
(2) The European patent application or the European patent may not be amended so that its object extends beyond the content of the application as filed.
(3) The European patent cannot be modified to extend the protection it gives.
63. Section 124 is replaced by the following text:
Information on the state of the technique
Rule 124
(1) The European Patent Office may invite the applicant, in accordance with the Implementing Regulations, to provide information on the state of the technology that has been taken into account in national or regional patent procedures and that deals with an invention subject to the European patent application.
(2) If, within the time provided, the applicant does not return to the invitation referred to in paragraph 1^er, the European patent application is deemed to be withdrawn.
64. Section 126 is deleted.
65. Section 127 is replaced by the following text:
European Patent Register
Article 127
The European Patent Office maintains a European Patent Register, where all indications mentioned in the Implementing Regulations are entered. No registration is entered into the European Patent Register before the European application has been published. The European Patent Register is open to public inspection.
66. Section 128 is replaced by the following text:
Public inspection
Rule 128
(1) Records relating to European patent applications that have not yet been published can only be opened to public inspection with the applicant's agreement.
(2) Anyone who proves that the applicant has availed himself of his European patent application against him may consult the file before the publication of this application and without the applicant's consent.
(3) Where a divisional application or a new European patent application filed under Article 61, paragraph 1^er is published, any person may consult the original application file prior to the publication of this application and without the applicant's consent.
(4) After the publication of the European patent application, the files of the application and the European patent to which it took place may, upon request, be opened to the public inspection, subject to the restrictions provided by the Implementing Regulations.
(5) The European Patent Office may, even before the publication of the European patent application, communicate to third parties or publish the information referred to in the Implementing Regulations.
67. Section 129 is replaced by the following text:
Recurrent
Rule 129
The European Patent Office publishes periodically:
(a) a European Patent Bulletin containing the information prescribed by this Agreement, the Implementing Regulations or the President of the European Patent Office;
(b) an Official Journal containing communications and general information from the President of the European Patent Office and any other information relating to this Convention and its application.
68. Section 130 is replaced by the following text:
Exchange of information
Rule 130
(1) Unless otherwise provided in this Convention or in national legislation, the European Patent Office and the central industrial property services of the Contracting States shall, upon request, communicate any useful information on European or national patent applications and European or national patents and the procedures concerning them.
(2) Paragraph 1^er applies to the exchange of information, under working agreements, between the European Patent Office, on the one hand, and on the other:
(a) the central services of industrial property of other States;
(b) any intergovernmental patenting organization;
(c) any other organization.
(3) Information communications made pursuant to paragraph 1^er and in paragraph 2, letters (a) and (b) are not subject to the restrictions provided for in section 128. The Governing Council may decide that communications made pursuant to paragraph 2 (c) are not subject to the restrictions provided for in Article 128, provided that the organization concerned undertakes to consider the information communicated as confidential until the date of publication of the European patent application.
69. Section 133 is replaced by the following text:
General principles of representation
Article 133
(1) Subject to the provisions of paragraph 2, no person shall be required to be represented by an authorized representative in the procedures established by this Convention.
(2) The natural and legal persons who have neither their domicile nor their seat in a Contracting State shall be represented by an authorized representative, and shall act through it, in any procedure established by this Agreement, except for the filing of a European patent application; other exceptions may be provided by the Implementing Regulations.
(3) Physical and legal persons who have their domicile or seat in a Contracting State may act through an employee in any procedure established by this Agreement; the employee, who must have a power in accordance with the provisions of the regulations, is not required to be an authorized agent. The Implementing Regulations may provide for whether and under what conditions an employee of a legal person referred to in this paragraph may also act for other legal persons who have their seat in a Contracting State and have economic ties with it.
(4) Specific provisions relating to the common representation of parties acting in common may be established by the Implementing Regulations.
70. Section 134 is replaced by the following text:
Representation before the European Patent Office
Rule 134
(1) The representation of natural or legal persons in the proceedings established by this Convention shall be ensured only by the authorized agents registered on a list held for that purpose by the European Patent Office.
(2) Any physical person who
a) has the nationality of a Contracting State,
(b) has its professional domicile or place of employment in a Contracting State and
(c) met the tests of the European qualification examination,
may be listed on the list of authorized agents.
(3) For a period of one year from the date on which the accession of a State to this Convention takes effect, may apply for registration on the list of authorized agents, any natural person who
a) has the nationality of a Contracting State,
(b) has its professional domicile or place of employment in the State which has acceded to the Convention and
(c) is authorized to represent in respect of patents of invention of natural or legal persons before the central office of industrial property of that State.
In the event that this authorization is not subject to the requirement of a special professional qualification, the person must have acted in that State as a regular representative for at least five years.
(4) The registration is made on request with certificates indicating that the conditions referred to in paragraph 2 or 3 are met.
(5) Persons on the list of authorized agents shall be entitled to act in any procedure established by this Convention.
(6) For the purpose of acting as an authorized agent, any person listed in subsection 1^er is entitled to have a professional domicile in a Contracting State in which the procedures established by this Convention take place, taking into account the protocol on the centralization annexed to this Convention. The authorities of that State may withdraw this authorization only in special cases and under national law relating to public order and public security. The President of the European Patent Office must be consulted before such action is taken.
(7) The President of the European Patent Office may grant an exemption:
(a) the requirement referred to in paragraph 2, letter (a) or paragraph 3, letter (a) in particular circumstances;
(b) the requirement referred to in paragraph 3, letter (c), second sentence, if the applicant demonstrates that he has otherwise acquired the qualifications required.
(8) Representation in the same way as an agent authorized in the proceedings established by this Convention may be provided by any lawyer authorized to practise in one of the Contracting States and in which he or she has his or her professional domicile, to the extent that he or she may act in that State as an agent in the matter of invention patents. The provisions of paragraph 6 shall apply.
71. The following new article 134bis is inserted after section 134:
Institute of Chartered Agents near the European Patent Office
Article 134bis
(1) The Board of Directors has jurisdiction to determine and amend provisions relating to:
(a) at the Institute of Chartered Agents near the European Patent Office, hereinafter referred to as the Institute;
(b) the qualification and training required for admission to the European qualifying examination and the organization of the tests for that examination;
(c) the disciplinary power of the Institute or the European Patent Office on authorized agents;
(d) the confidentiality obligation of the authorized agent and the right of the authorized agent to refuse to disclose in proceedings before the European Patent Office communications exchanged between him and his client or any other person.
(2) Any person on the list of authorized agents referred to in section 134, paragraph 1^er is a member of the Institute.
72. Section 135 is replaced by the following text:
Application for national procedure
Rule 135
(1) The central service of the industrial property of a designated Contracting State shall, upon request of the applicant or the holder of a European patent, initiate the procedure for the grant of a national patent in the following cases:
(a) if the European patent application is deemed to be withdrawn under Article 77, paragraph 3;
(b) in other cases provided for in national legislation where, under this Convention, the European patent application is either rejected or withdrawn or deemed withdrawn or the European patent revoked.
(2) In the case referred to in paragraph 1^er, letter (a), the application must be submitted to the national central industrial property service to which the European patent application had been filed. Subject to the provisions of national legislation relating to national defence, this service shall forward the request directly to the central services of the Contracting States mentioned therein.
(3) In the cases referred to in paragraph 1^er, letter (b), the request for processing must be submitted to the European Patent Office in accordance with the Implementing Regulations. It is deemed to be filed only after payment of the processing tax. The European Patent Office transmits the request to the central industrial property services of the states mentioned therein.
(4) The European patent application ceases to produce the effects referred to in Article 66 if the request for processing is not forwarded in due time.
73. Section 136 is deleted.
74. Section 137 is replaced by the following text:
Formal conditions of transformation
Rule 137
(1) A European patent application transmitted in accordance with Article 135, paragraph 2 or 3 may not, in its form, be subject to conditions different from those provided for in this Convention or to additional conditions.
(2) The central industrial property service to which the application is transmitted may require that, within a period not less than two months, the applicant:
(a) pay the national filing fee;
(b) produce, in one of the official languages of the State in question, a translation of the original text of the European patent application and, where applicable, a translation of the amended text during the proceedings before the European Patent Office, on the basis of which it wishes to proceed the national procedure.
75. Section 138 is replaced by the following text:
Nullity of European patents
Article 138
(1) Subject to the provisions of Article 139, the European patent shall be declared null and void, with effect for a Contracting State, only if:
(a) the subject matter of the European patent is not patentable under Articles 52 to 57;
(b) the European patent does not state the invention sufficiently clear and complete so that a skilled person can execute it;
(c) the subject-matter of the European patent extends beyond the content of the application as filed or, where the patent has been granted on the basis of a divisional application or a new application filed under section 61, if the subject-matter of the patent extends beyond the content of the previous application as filed;
(d) the protection conferred by the European patent has been extended; or
(e) the holder of the European patent did not have the right to obtain it under Article 60, paragraph 1^er.
(2) If the grounds for nullity affect the European patent only in part, it is limited in the form of a corresponding amendment of the claims and is declared partially null.
(3) In proceedings before the competent court or administration concerning the validity of the European patent, the patent holder is entitled to limit the patent by modifying the claims. The patent thus limited serves as the basis for the procedure.
76. Section 140 is replaced by the following text:
National utility models and certificates
Rule 140
Articles 66, 124, 135, 137 and 139 are applicable to utility models or certificates of utility as well as related requests in Contracting States whose legislation provides for such protection titles.
77. Section 141 is replaced by the following text:
Annual European patent taxes
Article 141
(1) Annual fees due under the European patent may only be collected for the years following the year referred to in Article 86, paragraph 2.
(2) If annual fees due under the European patent expire within two months of the date on which the mention of the grant of the patent has been published, such annual fees are deemed to have been validly paid subject to payment within the time limit mentioned. There is no overtax under national regulations.
78. The following new article 149bis is inserted after section 149:
Other agreements between Contracting States
Article 149bis
(1) This Convention shall not be construed in that it limits the right of all Contracting States or of several of them to enter into special agreements on matters relating to European patent applications or European patents which, under this Convention, fall under national law and are governed by it, such as
(a) an agreement establishing a European patent court common to Contracting States parties to the agreement;
(b) an agreement establishing a common entity to the Contracting States parties to the agreement which shall, upon request of the quasi-judicial authorities, give notices on matters relating to European patent law or to national law harmonized with it;
(c) an agreement under which Contracting States parties to the Agreement shall waive in whole or in part the translations of European patents in accordance with Article 65;
(d) an agreement under which Contracting States parties to the agreement provide that the translations of European patents required in accordance with Article 65 may be filed with the European Patent Office and published by the European Patent Office.
(2) The Board of Directors has jurisdiction to decide that
(a) members of the Boards of Appeal or the Enlarged Board of Appeal may be part of a European patent court or common entity and take part in proceedings before that court or entity under such agreement;
(b) the European Patent Office shall provide a common entity with the support staff, premises and equipment necessary for the performance of its functions, and that the Organization shall bear in whole or in part the costs related to that entity.
79. Part 10 of the Convention is replaced by the following text:
PART DIXTH
INTERNATIONAL REQUESTS FOR SENSUS OF COOPERATION IN THE MATERIAL OF BREVETS - EURO-PCT REQUESTS
Article 150
Application of the Patent Cooperation Treaty
(1) The Patent Cooperation Treaty of 19 June 1970, referred to as PCT, applies in accordance with the provisions of this Part.
(2) International applications filed under the PCT may be subject to procedures before the European Patent Office. In these procedures, the provisions of the PCT, its implementing regulations and, as a supplementary measure, those of this Convention are applicable. The provisions of the PCT or its enforcement regulations shall prevail in the event of a discrepancy.
The European Patent Office, receiving office
Article 151
The European Patent Office acts as a receiving office within the meaning of the PCT, in accordance with the Implementing Regulations. Section 75, paragraph 2 is applicable.
The European Patent Office, International Research Administration or International Preliminary Examination Administration
Rule 152
The European Patent Office shall act as an administration responsible for international research and as an administration responsible for the international preliminary examination within the meaning of the PCT, in accordance with an agreement between the Organization and the International Bureau of the World Intellectual Property Organization, for applicants who are a national of a Contracting State of this Agreement, or have their domicile or seat therein. This agreement may provide that the European Patent Office also acts for any other applicant.
The European Patent Office, designated office or elected office
Rule 153
(1) The European Patent Office is
a) designated office for any State Party to this Convention for which the PCT is in force, which is designated in the international application and for which the applicant indicates that it intends to obtain a European patent, and
(b) elected office, when the applicant elected a designated State according to letter (a).
(2) An international application for which the European Patent Office is designated or elected and to which an international filing date has been granted, has the value of a regular European application (Euro-PCT application).
(3) The international publication of a Euro-PCT application in an official language of the European Patent Office replaces the publication of the European patent application and is referred to in the European Patent Bulletin.
(4) If the Euro-PCT application is published in another language, a translation into one of the official languages must be filed with the European Patent Office, which publishes it. Subject to the provisions of Article 67, paragraph 3, the provisional protection referred to in Article 67, paragraphs 1^er and 2 is only insured from the date of this publication.
(5) The Euro-PCT application is treated as a European patent application and is considered to be included in the state of the art within the meaning of Article 54, paragraph 3 if the conditions provided for in paragraph 3 or 4 and in the Implementing Regulations are met.
(6) The international research report on a Euro-PCT application or the declaration that replaces it and their international publication replaces the European research report and the mention of its publication in the European Patent Bulletin.
(7) A supplementary European search report on any Euro-PCT application is being prepared in accordance with paragraph 5. The Board may decide that it is renounced to a supplementary search report or that the search fee is reduced.
80. Articles 154, 155, 156, 157, 158, 159, 160, 161, 162 and 163 are deleted.
81. Section 164 is replaced by the following text:
Implementing Regulations and Protocols
Article 164
(1) The Implementing Regulations, the Protocol on Recognition, the Protocol on Privileges and Immunities, the Protocol on Centralization, the Interpretive Protocol to Article 69 and the Protocol on Staffing are an integral part of this Convention.
(2) In the event of a discrepancy between the provisions of this Convention and those of the Implementing Regulations, the provisions of the Convention shall prevail.
82. Section 167 is deleted.
Protocols
Article 2
1. The interpretative protocol of Article 69 EPC is replaced by the following text:
PROTOCOL OF ARTICLE 69 EPC
General principles
Article 1
Article 69 should not be interpreted as meaning that the scope of protection conferred by the European patent is determined in the narrow and literal sense of the text of the claims and that the description and drawings are used only to dispel the ambiguities that might be receding the claims. It should not be further interpreted as meaning that claims are used only as a guideline and that protection also extends to that, in the opinion of a skilled person who has examined the description and the drawings, the patent holder has heard protection. Article 69 must, however, be interpreted as defining between these extremes a position that ensures fair protection to the patent holder and a reasonable degree of certainty to third parties.
Equivalent
Article 2
For the determination of the scope of protection conferred by the European patent, it is duly taken into account any element equivalent to an element specified in the claims.
2. The following staffing protocol is included in the European Patent Convention as an integral part of it:
PROTOCOL ON EFFECTIVES OF THE EUROPEAN OFFICE OF BREVEITS TO HAYE (PROTOCOLE ON EFFECTIVES)
The European Patent Organisation ensures that the proportion of the jobs of the European Patent Office assigned to the Department of The Hague, as defined in the employment structure and staffing table for the year 2000, remains essentially unchanged. Any change in the number of jobs assigned to the Department of The Hague resulting in a gap of more than 10 per cent over this proportion, which is necessary to ensure the proper functioning of the European Patent Office, requires a decision of the Board of Directors of the Organization, taken on the proposal of the President of the European Patent Office, after consultation with the governments of the Federal Republic of Germany and the Kingdom of the Netherlands.
3. Section I^re the centralization protocol is replaced by the following:
PROTOCOL ON CENTRALIZATION AND INTRODUCTION OF THE EUROPEAN BREVETS SYSTEM (PROTOCOLE ON CENTRALIZATION)
Section I^re
(1) (a) At the date of entry into force of the convention, the States parties to the convention that are also members of the International Patent Institute established by the Hague Agreement of 6 June 1947, shall take all necessary measures to ensure that the transfer to the European Patent Office of all assets and liabilities as well as all staff of the International Patent Institute shall be effected no later than the date referred to in Article 162,^er of the convention. The transfer modalities will be determined by an agreement between the International Patent Institute and the European Patent Organisation. The above-mentioned States and other States parties to the Convention shall take all necessary measures to ensure that such agreement is implemented by the date referred to in Article 162, paragraph 1^er of the convention. On the date of this implementation, the States members of the International Patent Institute that are also parties to the convention also undertake to end their participation in the Hague Agreement.
(b) States parties to the Convention shall take all necessary measures to ensure that, according to the terms of the agreement provided for in letter (a), all assets and liabilities as well as all staff of the International Patent Institute are incorporated into the European Patent Office. As soon as the agreement is implemented, the European Patent Office will, on the one hand, carry out the tasks assumed by the International Patent Institute on the date of the opening to the signature of the convention, in particular those assumed in respect of its Member States, whether or not they become parties to the convention, on the other hand, the tasks that it has undertaken to assume in respect of the agreement In addition, the Board of Directors of the European Patent Organisation may assign the European Patent Office additional research tasks.
(c) The above commitments apply to the agency established under the Hague Agreement and under the conditions set out in the agreement between the International Patent Institute and the Government of the Contracting State concerned. This Government undertakes to conclude with the European Patent Organisation a new agreement replacing the agreement already entered into with the International Patent Institute to harmonize the clauses relating to the organization, operation and financing of the agency with the provisions of this protocol.
(2) Subject to the provisions of section III, the States parties to the Convention shall, for their central industrial property services and for the benefit of the European Patent Office, waive any activity that they may exercise as a research administration within the meaning of the Patent Cooperation Treaty from the date referred to in Article 162, paragraph 1^er of the convention.
(3) (a) An agency of the European Patent Office is established in Berlin, from the date referred to in Article 162, paragraph 1^er of the convention. She belongs to The Hague Department.
(b) The Governing Council sets out the division of tasks of the Berlin agency, taking into account the general considerations and needs of the European Patent Office.
(c) At least at the beginning of the period following that of the progressive extension of the scope of activity of the European Patent Office, the volume of work entrusted to this agency must enable the reviewer of the Berlin Annex of the German Patent Office to be fully occupied by the date of opening of the agreement.
(d) The Federal Republic of Germany supports all additional costs resulting from the creation and operation of the Berlin agency for the European Patent Organisation.
New text of the Convention
Article 3
(1) The Board of Directors of the European Patent Organisation is authorized to prepare, on the proposal of the President of the European Patent Office, a new text of the European Patent Convention. In this new text, the provisions of the Convention must, if necessary, be editorially harmonized in the three official languages. In addition, the provisions of the Convention may be subject to a new consecutive numbering and references to other provisions of the Convention may be amended in the light of the new numbering.
(2) The Board of Directors adopts the new text of the Convention by a three-quarters majority of the Contracting States represented and voting. Once adopted, the new text of the Convention becomes an integral part of this review.
Signature and ratification
Article 4
(1) This Review Act is open until 1^er September 2001 at the signing of the Contracting States to the European Patent Office in Munich.
(2) This review is subject to ratification; instruments of ratification are deposited with the Government of the Federal Republic of Germany.
Access
Article 5
(1) This review act is open until it comes into force to the accession of States parties to the Convention and States that ratify or accede to the Convention.
(2) The instruments of accession are deposited with the Government of the Federal Republic of Germany.
Provisional application
Article 6
Section 1, items 4 to 6 and 12 to 15, Item 2, items 2 and 3, Items 3 and 7 of this review act apply provisionally.
Transitional provisions
Article 7
(1) The revised text of the Convention applies to all European patent applications filed after its entry into force and to European patents granted on the basis of these applications. It does not apply to European patents already granted at the time of its entry into force, or to European patent applications pending at that date, unless the Governing Council of the European Patent Organisation otherwise provides.
(2) The Governing Council of the European Patent Organisation shall take a decision in accordance with paragraph 1^er no later than 30 June 2001, by a three-quarters majority of the Contracting States represented and voting. This decision becomes an integral part of this review act.
Entry into force
Article 8
(1) The revised text of the European Patent Convention comes into force two years after the deposit of the last instruments of ratification or accession of fifteen Contracting States, the first day of the third month following the deposit of the instrument of ratification or accession of that of the Contracting States which proceeds the last of all to that formality, if that date is earlier.
(2) Upon the entry into force of the revised text of the Convention, the text of the Convention valid until that date ceases to be in force.
Communications and notifications
Article 9
(1) The Government of the Federal Republic of Germany shall prepare certified copies of this review and transmit them to the Governments of the Contracting States and States that may accede to the European Patent Convention under Article 166, paragraph 1^er.
(2) The Government of the Federal Republic of Germany shall notify the governments of the States referred to in paragraph 1^er :
(a) the deposit of any instrument of ratification or accession;
(b) the effective date of this review act.
In faith, the plenipotentiaries designated for this purpose, after having submitted their full powers, recognized in due form, have signed this review act.
Done in Munich, on the twenty-nine November two thousand in a copy in German, English and French, the three texts being equally authentic. This copy is filed in the archives of the Government of the Federal Republic of Germany.
For the consultation of the table, see image

Text of the Convention on the Grant of European Patents (European Patent Convention), as adopted by the Governing Council in its decision of 28 June 2001
FIRST PART
GENERAL AND INSTITUTIONAL PROVISIONS
CHAPTER I^er. - General provisions
European Patent Law
Article 1^er
The present Convention shall establish a common right to the Contracting States in the matter of the grant of invention patents.
European Patent
Article 2
(1) Patents granted under this Convention are referred to as European patents.
(2) In each of the Contracting States for which it is granted, the European patent has the same effect and is subject to the same regime as a national patent granted in that State, unless this Convention otherwise provides.
Territorial scope
Article 3
The grant of a European patent may be requested for one or more of the Contracting States.
European Patent Organization
Article 4
(1) A European Patent Organisation, referred to as the Organisation, is established by this Convention. It has administrative and financial autonomy.
(2) The organs of the Organization are:
(a) the European Patent Office;
(b) the Board of Directors.
(3) The Organization has the task of issuing European patents. This task is carried out by the European Patent Office under the control of the Board of Directors.
Conference of Ministers of Contracting States
Article 4bis
A conference of the Ministers of the Contracting States concerned with patents meets at least every five years to discuss issues relating to the Organization and the European patent system.
CHAPTER II. - The European Patent Organisation
Legal status
Article 5
(1) The Organization has a legal personality.
(2) In each of the Contracting States, the Organization has the broadest legal capacity recognized to legal persons by national legislation; it may, inter alia, acquire or dispose of real property and furniture and be brought to justice.
(3) The President of the European Patent Office represents the Organization.
Headquarters
Article 6
(1) The Organization has its headquarters in Munich.
(2) The European Patent Office is located in Munich. He has a department in The Hague.
Agencies of the European Patent Office
Article 7
By decision of the Board of Directors, agencies of the European Patent Office may be created, as necessary, for the purpose of information or liaison, in the Contracting States or intergovernmental organizations competent in industrial property, subject to the consent of the Contracting State concerned or the organization concerned.
Privileges and immunities
Article 8
The Protocol on Privileges and Immunities annexed to this Convention sets out the conditions under which the Organization, the members of the Board of Directors, the officers of the European Patent Office and all other persons mentioned in this Protocol and participating in the activities of the Organization shall enjoy, in each Contracting State, the privileges and immunities necessary for the fulfilment of their mission.
Accountability
Article 9
(1) The contractual liability of the Organization shall be governed by the law applicable to the contract in question.
(2) The non-contractual liability of the Organization for damage caused by it or by the agents of the European Patent Office in the performance of their duties is governed by the law in force in the Federal Republic of Germany. If the damage was caused by the department of The Hague or by an agency, or by agents of the department or agency, the applicable law is that of the Contracting State in which the department or agency is located.
(3) The personal responsibility of the agents of the European Patent Office to the Organization is governed by their status or the regime applicable to them.
(4) Jurisdictions competent to resolve the disputes referred to in paragraphs 1^er and two are:
(a) in respect of disputes referred to in paragraph 1^erthe courts of the Federal Republic of Germany, in the absence of the designation of a jurisdiction of another State in the contract between the parties;
(b) in respect of the disputes referred to in paragraph 2, the courts of the Federal Republic of Germany or the State in which the department or agency is located.
CHAPTER III. - The European Patent Office
Direction
Article 10
(1) The management of the European Patent Office is provided by the President, who is responsible for the Agency's activity before the Board of Directors.
(2) To that end, the President has the following functions and competencies:
(a) it shall take all necessary measures, including the adoption of internal administrative instructions and public information, to ensure the operation of the European Patent Office;
(b) it shall determine, unless otherwise provided by this Agreement, the acts to be performed respectively with the European Patent Office in Munich or its department in the Hague;
(c) it may submit to the Governing Council any proposal to amend this Convention, to amend this Agreement, to amend it or to make a decision within the jurisdiction of the Governing Council;
(d) prepare and execute the budget as well as any additional or amended budget;
(e) submit an annual progress report to the Board of Directors;
(f) he exercises authority over staff;
(g) subject to Article 11, he shall appoint the agents and decide on their advancement;
(h) he exercises disciplinary power over officials other than those referred to in Article 11 and may propose to the Board of Directors disciplinary sanctions against officials referred to in Article 11, paragraphs 2 and 3;
(i) it may delegate its functions and competencies.
(3) The Chairman was assisted by several Vice-Chairmen. In the event of the absence or incapacity of the President, one of the Vice-Presidents shall serve in accordance with the procedure established by the Board of Directors.
Appointment of senior staff
Article 11
(1) The President of the European Patent Office is appointed by the Board of Directors.
(2) The Vice-Presidents are appointed by the Board of Directors, the President of the European Patent Office heard.
(3) The members of the Boards of Appeal and the Enlarged Board of Appeal, including their chairs, are appointed by the Board of Directors on the proposal of the President of the European Patent Office. They may be reappointed by the Board of Directors, the President of the European Patent Office heard.
(4) The Board of Directors shall exercise disciplinary power over the officers referred to in paragraphs 1^er 3.
(5) The Board of Directors may, the President of the European Patent Office heard, also appoint as members of the Enlarged Board of Appeal of the legal members of the national courts or quasi-judicial authorities of the Contracting States, who may continue to exercise their judicial functions at the national level. They are appointed for a period of three years and may be reappointed.
Duties of function
Article 12
The officers of the European Patent Office are obliged, even after the termination of their duties, not to disclose or use the information that, by their nature, is covered by professional secrecy.
Litigation between the Organisation and the agents of the European Patent Office
Article 13
(1) Agents or former agents of the European Patent Office, or their right holders, may apply to the Administrative Tribunal of the International Labour Organization for disputes between them and the European Patent Organisation, in accordance with the statute of the said Tribunal and within the limits and conditions determined by the statute of the officials, by the pension regulations or by the regime applicable to the other agents.
(2) An appeal is admissible only if the person concerned has exhausted all remedies available to him by the statute of the public servants, by the pension regulations or by the regime applicable to other agents.
Languages of the European Patent Office, European patent applications and other documents
Article 14
(1) The official languages of the European Patent Office are German, English and French.
(2) Any European patent application must be filed in one of the official languages or, if filed in another language, translated into one of the official languages, in accordance with the Implementing Regulations. Throughout the proceedings before the European Patent Office, this translation may be made in accordance with the text of the application as filed. If the required translation has not been filed in a timely manner, the application is deemed to be withdrawn.
(3) The official language of the European Patent Office in which the European patent application has been filed or translated must be used as a language of the proceedings, unless the Implementing Regulations otherwise provide, in all proceedings before the European Patent Office.
(4) Individuals or legal entities having their domicile or seat in a Contracting State having a language other than German, English or French as an official language, and nationals of that State having their domicile abroad may produce, in an official language of that State, documents to be produced within a specified period of time. However, they are required to produce a translation into an official language of the European Patent Office in accordance with the Implementing Regulations. If a piece other than the parts composing the parts of the European patent application is not produced in the prescribed language or if a required translation is not produced within the time limits, the part is deemed not to have been produced.
(5) European patent applications are published in the language of the procedure.
(6) The European patent fascicles are published in the language of the procedure and include a translation of the claims in the other two official languages of the European Patent Office.
(7) Published in the three official languages of the European Patent Office:
(a) the European Patent Bulletin;
(b) the Official Journal of the European Patent Office.
(8) Registrations to the European Patent Register are made in the three official languages of the European Patent Office. In case of doubt, registration in the language of the procedure is believed.
Proceedings
Article 15
For the implementation of the procedures provided for in this Convention, the European Patent Office shall:
(a) a deposit section;
(b) Research divisions;
(c) Examining divisions;
(d) opposition divisions;
(e) a legal division;
(f) Boards of Appeal;
(g) a Enlarged Board of Appeal.
Deposit Section
Article 16
The filing section is competent to review European patent applications at the time of filing and the formal requirements.
Research Divisions
Article 17
Research divisions are competent to prepare European research reports.
Examining divisions
Article 18
(1) Examining divisions are competent to review European patent applications.
(2) A Examining Division consists of three technical examiners. However, the instruction of the European patent application is, as a general rule, entrusted to one of the members of the Examining Division. Oral proceedings take place before the Examining Division itself. If it considers that the nature of the decision requires it, the Examining Division is supplemented by a legal reviewer. In the event of the equal sharing of votes, the President of the Examining Division is preponderant.
Opposition Divisions
Article 19
(1) Opposition divisions are competent to examine oppositions to European patents.
(2) An opposition division consists of three technical examiners, at least two of whom must not have participated in the patent grant procedure that is the subject of the opposition. A examiner who has participated in the European patent grant procedure may not preside over. The Opposition Division may entrust to one of its members the instruction of the opposition. The oral proceedings take place before the opposition division itself. If it considers that the nature of the decision requires it, the Opposition Division is supplemented by a legal examiner who must not have participated in the patent grant procedure. In the event of the equal sharing of votes, the President of the Opposition Division is preponderant.
Legal Division
Rule 20
(1) The legal division is competent for any decision relating, on the one hand, to the mentions to be made on the European Patent Register, on the other hand, to the listing of authorized agents and to their deletion of the Register.
(2) The decisions of the legal division are rendered by a legal member.
Boards of Appeal
Article 21
(1) The Boards of Appeal are competent to review appeals against decisions of the filing section, review divisions, opposition divisions and the legal division.
(2) In the case of an appeal against a decision of the filing section or the legal division, the board of appeal consists of three legal members.
(3) In the case of an appeal against a decision of a Examining Division, the Board of Appeal consists of:
(a) two technical members and a legal member when the decision is related to the rejection of a European patent application or the issuance, limitation or revocation of a European patent and was rendered by a Examining Division of less than four members;
(b) three technical members and two legal members when the decision was rendered by a four-member Examining Division or if the Board of Appeal considers that the nature of the appeal requires it;
(c) three legal members in all other cases.
(4) In the case of an appeal against a decision of an opposition division, the board of appeal consists of:
(a) two technical members and one legal member when the decision was rendered by a three-member opposition division;
(b) three technical members and two legal members when the decision was rendered by an opposition division composed of four members or if the board of appeal considers that the nature of the appeal requires it.
Enlarged Board of Appeal
Article 22
(1) The Enlarged Board of Appeal is competent to:
(a) adjudicate the legal issues submitted to it by the boards of appeal under section 112;
(b) provide advice on legal matters submitted to it by the President of the European Patent Office under Article 112;
(c) decide on requests for review of decisions of the Boards of Appeal under section 112bis.
(2) In the procedures provided for in paragraph 1^er (a) and (b), the Enlarged Board of Appeal consists of five legal members and two technical members. In the procedures provided for in paragraph 1^er (c), the Enlarged Board of Appeal consists of three or five members, in accordance with the Implementing Regulations. In all proceedings, the presidency is provided by a legal member.
Independence of room members
Article 23
(1) Members of the Enlarged Board of Appeal and Boards of Appeal shall be appointed for a period of five years and shall not be relieved of their functions during that period, except on serious grounds and if the Board of Directors, upon a proposal by the Enlarged Board of Appeal, makes a decision to that effect. Notwithstanding the provisions of the first sentence, the term of office of the members of the boards of appeal shall terminate in the event of resignation or retirement in accordance with the statute of the officials of the European Patent Office.
(2) Members of the chambers may not be members of the filing section, examination divisions, opposition divisions or the legal division.
(3) In their decisions, members of the chambers are not bound by any instruction and must comply only with the provisions of this Convention.
(4) The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be decided in accordance with the Implementing Regulations. They are subject to approval by the Board of Directors.
Abstention and recusal
Article 24
(1) Members of a board of appeal and the Enlarged Board of Appeal shall not participate in the settlement of a case if they have a personal interest in it, if they have previously intervened as representatives of one of the parties or have taken part in the decision that is the subject of the appeal.
(2) If, for one of the reasons mentioned in paragraph 1^er or for any other reason, a member of a board of appeal or of the Enlarged Board of Appeal considers that he or she is unable to participate in the settlement of a case, shall notify the board of appeal.
(3) Members of a board of appeal and the Enlarged Board of Appeal may be challenged by any party for any reason referred to in paragraph 1^er or if they can be suspected of bias. The challenge is not admissible when the party in question has performed procedural acts although it has already been aware of the grounds for recusal. The challenge cannot be based on the nationality of the members.
(4) The Boards of Appeal and the Enlarged Board of Appeal shall, in the cases referred to in paragraphs 2 and 3, decide without the participation of the member concerned. To make this decision, the member is replaced by his or her alternate.
Technical advice
Rule 25
At the request of the competent national jurisdiction to take action in counterfeit or invalidity, the European Patent Office is required to provide, against payment of an appropriate fee, a technical opinion on the European patent in question. Examining divisions are competent for the issuance of such notices.
CHAPTER IV. - The Board of Directors
Composition
Rule 26
(1) The Board of Directors shall be composed of representatives of the Contracting States and their alternates. Each Contracting State has the right to appoint a representative to the Board of Directors and an alternate.
(2) Members of the Board of Directors may be assisted by advisers or experts in accordance with the rules of procedure of the Board of Directors.
Presidency
Rule 27
(1) The Governing Council shall elect from among the representatives of the Contracting States and their alternates a President and a Vice-President. The Vice-President shall supersede the President in the event of an impediment.
(2) The term of office of the President and Vice-President is three years. This mandate is renewable.
Office
Rule 28
(1) The Board of Directors may establish a Bureau composed of five of its members, provided that the number of Contracting States is at least eight.
(2) The President and Vice-President of the Board of Directors shall be members of the Bureau; the other three members are elected by the Board of Directors.
(3) The term of office of the members elected by the Board of Directors is three years. This mandate is not renewable.
(4) The Bureau shall perform the tasks entrusted to it by the Board of Directors in accordance with the rules of procedure.
Sessions
Rule 29
(1) The Board of Directors meets on the convocation of its President.
(2) The President of the European Patent Office participates in the deliberations of the Board of Directors.
(3) The Board of Directors holds an ordinary session once a year; In addition, it shall meet at the initiative of its President or at the request of the third party of the Contracting States.
(4) The Board of Directors shall deliberate on the basis of a specific agenda, in accordance with its rules of procedure.
(5) Any item whose inscription on the agenda is requested by a Contracting State in accordance with the rules of procedure is included in the provisional agenda.
Participation of observers
Rule 30
(1) The World Intellectual Property Organization is represented at sessions of the Board of Directors, in accordance with an agreement between the Organization and the World Intellectual Property Organization.
(2) Other intergovernmental organizations responsible for the implementation of international patent procedures, with which the Organization has concluded an agreement, are represented at the sessions of the Board of Directors, in accordance with this agreement.
(3) Any other intergovernmental or international non-governmental organization engaged in an activity of interest to the Organization may be invited by the Governing Council to be represented at its sessions during any discussion of issues of common interest.
Languages of the Board of Directors
Rule 31
(1) The languages used in the deliberations of the Board of Directors are German, English and French.
(2) The documents submitted to the Board of Directors and the minutes of its deliberations are prepared in the three languages referred to in paragraph 1^er.
Personnel, premises and equipment
Rule 32
The European Patent Office shall make available to the Board of Directors and the committees that it has established the personnel, premises and material means necessary for the fulfilment of their mission.
Competence of the Board of Directors in certain cases
Rule 33
(1) The Board of Directors has jurisdiction to amend:
(a) the provisions of this Convention to the extent that they set the time limit;
(b) the provisions of Part II to Part 8 and Part 10 of this Convention to ensure their conformity with an international patent treaty or European Community patent law;
(c) the enforcement regulations.
(2) The Board of Directors has jurisdiction, in accordance with this Convention, to decide and amend:
(a) the financial regulations;
(b) the status of civil servants and the regime applicable to other officers of the European Patent Office, the scale of their remuneration, and the nature and rules of granting of the incidental benefits;
(c) the settlement of pensions and any increase in existing pensions for salary increases;
(d) the tax regulations;
(e) its rules of procedure.
(3) Notwithstanding section 18, paragraph 2, the Board of Directors has jurisdiction to decide, if the experience warrants, that, in certain categories of cases, the Examining Divisions shall be composed of a single technical examiner. This decision can be reported.
(4) The Governing Council has jurisdiction to authorize the President of the European Patent Office to negotiate and, subject to its approval, to conclude, on behalf of the European Patent Organisation, agreements with States or intergovernmental organizations and with documentation centres established under agreements with these organizations.
(5) The Board of Directors may not make a decision under paragraph 1^er (b):
- in respect of an international treaty before its entry into force;
- in respect of a legislative act of the European Community, before its entry into force or, where it provides for a period for its transfer, before the expiry of that period.
Voting rights
Rule 34
(1) The Contracting States have the sole right to vote on the Board of Directors.
(2) Subject to the application of Article 36, each Contracting State shall have one vote.
Votes
Rule 35
(1) Subject to paragraphs 2 and 3, the Governing Council shall make its decisions by a simple majority of the Contracting States represented and voting.
(2) Requires a majority of three-quarters of the Contracting States represented and voting decisions under the jurisdiction of the Governing Council under Article 7, of Article 11, paragraph 1^erArticle 33, paragraphs 1^er (a) and (c) and 2 to 4 of article 39, paragraph 1^erArticle 40, paragraphs 2 and 4, section 46, section 134bis, section 149bis, paragraph 2, section 152, section 153, paragraph 7, section 166 and section 172.
(3) Requires the unanimity of the Contracting States voting on decisions within the jurisdiction of the Governing Council under Article 33, paragraph 1^er (b). The Governing Council shall take such decisions only if all Contracting States are represented. A decision under section 33, paragraph 1^er (b) does not take effect if a Contracting State declares, within twelve months of the date of the decision, that it wishes not to be bound by that decision.
(4) Abstention is not considered a vote.
Voting
Rule 36
(1) For the adoption and amendment of the tax regulations as well as, if the financial burden of the Contracting States is increased, for the adoption of the budget of the Organization and of the amending or additional budgets, any Contracting State may require, after a first ballot in which each Contracting State has a vote and whatever the result of that election, that a second ballot be held immediately in which the votes are weighted in accordance with the provisions of paragraph 2. The decision results from the second ballot.
(2) The number of votes each Contracting State has in the new ballot shall be as follows:
(a) the number corresponding to the percentage resulting for each Contracting State of the distribution key of exceptional financial contributions provided for in Article 40, paragraphs 3 and 4 is multiplied by the number of contracting States and divided by five;
(b) the number of votes so calculated shall be rounded to the higher whole number;
(c) in addition to five additional votes;
(d) However, no Contracting State may have more than thirty votes.
CHAPTER V. - Financial provisions
Financing of the budget
Rule 37
The Organization's budget is funded:
(a) by the Organization's own resources;
(b) payment by the Contracting States for the maintenance of European patents collected in those States;
(c) where necessary, by exceptional financial contributions from Contracting States;
(d) if any, by the revenues provided for in section 146;
(e) where applicable and exclusively for tangible capital assets, borrowings from third parties and secured by land or buildings;
(f) where appropriate, by third-party funds for specific projects.
Organization's own resources
Rule 38
The Organization's own resources include:
(a) all revenues from taxes and other sources and reserves of the Organization;
(b) the resources of the Pension Reserve Fund, which must be considered as a special heritage of the Organization to assist its pension plan by establishing appropriate reserves.
Payments of Contracting States under European patent retention taxes
Rule 39
(1) Each Contracting State shall pay to the Organization, for each tax collected for the maintenance in force of a European patent in that State, an amount equal to a percentage of that tax, to be determined by the Governing Council, which shall not exceed 75% and shall be uniform for all Contracting States. If the said percentage is less than the uniform minimum set by the Board of Directors, the Contracting State shall pay that minimum to the Organization.
(2) Each Contracting State shall communicate to the Organization all the elements deemed necessary by the Board of Directors to determine the amount of such payments.
(3) The date on which these payments are to be made is fixed by the Board of Directors.
(4) If a payment is not fully made on the fixed date, the Contracting State shall be liable, from that date, for an interest in the unpaid amount.
Level of taxes and payments
Exceptional financial contributions
Rule 40
(1) The amount of taxes and the percentage, respectively referred to in sections 38 and 39, must be determined in such a way that the corresponding revenues allow for the balance of the Organization's budget.
(2) However, where the Organization is unable to achieve the balance of the budget under the conditions set out in paragraph 1^erthe Contracting States shall pay to the Organization exceptional financial contributions, the amount of which shall be determined by the Governing Council for the fiscal year in question.
(3) The exceptional financial contributions shall be determined for each of the Contracting States on the basis of the number of patent applications filed in the last year preceding that of the entry into force of this Agreement and according to the following distribution key:
(a) for half, proportionally to the number of patent applications filed in the Contracting State concerned;
(b) for half, proportionally to the number of patent applications filed by natural and legal persons having their domicile or seat in the territory of that State in that of the other Contracting States placed in second place, in the descending order of the deposits made by the said persons in the other Contracting States.
However, the amounts charged to the States in which the number of patent applications filed is greater than 25,000 are re-existed and re-examined in proportion to the total number of patent applications filed in the same States.
(4) Where the amount of the contribution of a Contracting State cannot be determined under the conditions laid down in paragraph 3, the Governing Council shall determine that amount in agreement with the State concerned.
(5) Section 39, paragraphs 3 and 4, applies to exceptional financial contributions.
(6) Exceptional financial contributions shall be refunded with an interest equal to all Contracting States. Reimbursements shall apply to the extent that it is possible to provide for this purpose in the budget and the amount so provided shall be apportioned among the Contracting States according to the distribution key referred to in paragraphs 3 and 4.
(7) The outstanding financial contributions made during a specified fiscal year are fully refunded before the total or partial reimbursement of any outstanding contributions made during a subsequent fiscal year is made.
Advances
Rule 41
(1) Upon request by the President of the European Patent Office, the Contracting States shall consent to the Organization of Cash Advances, to be applied on their payments and contributions, within the limits of the amount determined by the Board of Directors. These advances shall be prorated in respect of the amounts due by the Contracting States for the year in question.
(2) Section 39, paragraphs 3 and 4, is applicable to advances.
Budget
Rule 42
(1) The Organization's budget must be balanced. It is based on generally accepted accounting principles, as defined in the Financial Regulations. As appropriate, amending or additional budgets may be established.
(2) The budget is established in the account unit established by the Financial Regulations.
Expenditure authorities
Rule 43
(1) Expenditures on the budget are authorized for the fiscal year, unless otherwise provided by the Financial Regulations.
(2) In accordance with the Financial Regulations, credits that are not used at the end of the fiscal year, with the exception of those relating to staff costs, may be deferred to be limited to the following fiscal year alone.
(3) The appropriations are specialised in chapters grouped according to their nature or destination and subdivided, as appropriate, in accordance with the Financial Regulations.
Unpredictable expenditure
Rule 44
(1) Unpredictable spending credits may be included in the Organization's budget.
(2) The use of these credits by the Organization is subject to the prior authorization of the Board of Directors.
Fiscal year
Rule 45
The fiscal year begins on 1^er January and ends on December 31.
Preparation and adoption of the budget
Rule 46
(1) The President of the European Patent Office shall submit the draft budget to the Governing Council no later than the date fixed by the Financial Regulations.
(2) The budget as well as any amended or additional budget are decided by the Board of Directors.
Interim budget
Rule 47
(1) If, at the beginning of a fiscal year, the budget has not yet been determined by the Board of Directors, the expenditures may be made monthly by chapter or by another division, in accordance with the Financial Regulations, within the twelfth of the appropriations available to the budget of the previous year, without the effect of this measure being able to make available to the President of the European Patent Office credits greater than the twelfth of the ones provided in the proposed budget.
(2) The Governing Council may, provided that the other conditions set out in paragraph 1 are met, authorize expenditures exceeding the twelfth.
(3) On an interim basis, the payments referred to in section 37 (b) will continue to be made under the conditions set out in section 39 for the year before the year to which the proposed budget relates.
(4) The Contracting States shall pay each month, on an interim basis and in accordance with the distribution key referred to in Article 40, paragraphs 3 and 4, any exceptional financial contributions necessary to ensure the application of paragraphs 1^er and 2. Section 39, paragraph 4, applies to these contributions.
Budget performance
Rule 48
(1) The President of the European Patent Office shall carry out the budget as well as the amended or additional budgets, under his or her own responsibility and within the limits of the appropriations allocated.
(2) Within the budget, the President of the European Patent Office may, within the limits and conditions established by the Financial Regulations, transfer credits, either from chapter to chapter or from subdivision to subdivision.
Audit
Rule 49
(1) The accounts of all revenues and expenditures of the budget, as well as the Organization's balance sheet, are reviewed by auditors offering all guarantees of independence, appointed by the Board of Directors for a period of five years that may be extended or renewed.
(2) The check takes place on parts and if necessary on site. The purpose of the audit is to determine the legality and regularity of revenues and expenditures and to ensure good financial management. The Commissioners shall prepare after the closure of each fiscal year a report that contains a signed audit certification.
(3) The President of the European Patent Office shall submit annually to the Board of Directors the accounts for the past fiscal year relating to the operations of the budget, as well as the balance of assets and liabilities of the Organization, together with the report of the auditors.
(4) The Board of Directors approves the annual balance sheet as well as the report of the auditors and gives the President of the European Patent Office the discharge of the budget.
Financial regulations
Rule 50
The financial regulations include:
(a) the terms and conditions for the preparation and execution of the budget and the accountability and audit of the accounts;
(b) the terms and procedure whereby payments and contributions under Article 37, as well as advances under Article 41, shall be made available to the Organization by the Contracting States;
(c) the rules and the organization of control and the responsibility of ordering and accounting;
(d) interest rates under sections 39, 40 and 47;
(e) the terms and conditions for calculating contributions under section 146;
(f) the composition and tasks of a budget and finance commission that should be established by the Board of Directors;
(g) generally accepted accounting principles based on the annual budget and financial statements.
Taxes
Rule 51
(1) The European Patent Office may collect taxes for any official task or procedure performed under this Agreement.
(2) The payment deadlines for fees other than those set out in this Agreement are set out in the Implementing Regulations.
(3) When the Implementing Regulations prescribe the payment of a tax, they also provide for the legal consequences of default on time.
(4) The tax regulations include the amount of taxes and their method of collection.
PART II
LAW OF BREVEITS
CHAPTER I^er. - Patentability
Patentable inventions
Rule 52
(1) European patents are granted for any invention in all technological fields, provided that it is new, that it involves inventive activity and that it is susceptible to industrial application.
(2) Not considered inventions within the meaning of paragraph 1^er including:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) plans, principles and methods in the exercise of intellectual, game and economic activities, as well as computer programs;
d) information presentations.
(3) Paragraph 2 excludes the patentability of the elements it enumerates only to the extent that the European patent application or European patent concerns one of these elements, considered as such.
Exceptions to patentability
Rule 53
European patents are not issued for:
(a) inventions whose commercial exploitation would be contrary to public order or good morals, such a contradiction may not be deduced solely by the fact that exploitation is prohibited, in all Contracting States or in many of them, by a legal or regulatory provision;
(b) plant varieties or animal breeds as well as essentially biological processes to obtain plants or animals, this provision does not apply to microbiological processes and products obtained by these processes;
(c) the methods of surgical or therapeutic treatment of the human or animal body and the diagnostic methods applied to the human or animal body, this provision does not apply to products, including substances or compositions, for the implementation of one of these methods.
New
Rule 54
(1) An invention is considered new if it is not understood in the state of the technique.
(2) The state of the technique is constituted by anything made available to the public before the date of filing the European patent application by a written or oral description, use or any other means.
(3) The content of European patent applications as filed is also considered to be included in the state of the art, which have a filing date prior to that referred to in paragraph 2 and have only been published on that date or later date.
(4) Paragraphs 2 and 3 do not exclude the patentability of a substance or composition included in the state of the technique for the implementation of a method referred to in section 53(c), provided that its use for any of these methods is not included in the state of the technique.
(5) Paragraphs 2 and 3 also do not exclude the patentability of a substance or composition referred to in paragraph 4 for any specific use in a method referred to in section 53(c), provided that such use is not included in the state of the technique.
Non-opposable disclosures
Rule 55
(1) For the purposes of Article 54, a disclosure of the invention is not taken into consideration if it did not intervene earlier than six months before the filing of the European patent application and if it results directly or indirectly:
(a) an obvious abuse of the applicant or his predecessor in law or
(b) the fact that the applicant or his predecessor in law exhibited the invention in official or officially recognized exhibitions within the meaning of the Convention concerning international exhibitions, signed in Paris on 22 November 1928 and last revised on 30 November 1972.
(2) In the case referred to in paragraph 1^er (b), the latter is applicable only if the applicant declares, at the time of filing of the European patent application, that the invention was actually exposed and produces a certificate in support of its declaration within the time and under the conditions provided for by the Implementing Regulations.
Inventive step
Rule 56
An invention is considered to involve an inventive activity if, for a skilled person, it does not arise in an obvious way from the state of the art. If the state of the art also includes documents referred to in section 54, paragraph 3, they are not considered for the appraisal of the inventive step.
Industrial application
Rule 57
An invention is considered susceptible to industrial application if its object can be manufactured or used in any kind of industry, including agriculture.
CHAPTER II. - Persons authorized to apply for and obtain a European patent - Designation of the inventor
Authorization to file a European patent application
Rule 58
Any natural or legal person and corporation assimilated to a legal entity under the law under which it is a member may apply for a European patent.
Plurality of applicants
Rule 59
A European patent application may also be filed either by co-applicants or by several applicants who designate different Contracting States.
Right to European patent
Rule 60
(1) The right to the European patent belongs to the inventor or to his cause. If the inventor is an employee, the right to the European patent is defined in accordance with the law of the State in which the employee exercises his or her principal activity; If the State in which the main activity is carried out cannot be determined, the applicable law is that of the State in which the employer is established to which the employee is attached.
(2) If several persons have made the invention independently of each other, the right to the European patent belongs to the one whose European patent application has the oldest filing date, provided that the first application has been published.
(3) In proceedings before the European Patent Office, the applicant is deemed to be entitled to exercise the right to the European patent.
European patent application filed by an unlicensed person
Rule 61
(1) If a decision in force of a finding has recognized the right to obtain the European patent to a person other than the applicant, that person may, in accordance with the Implementing Regulations:
(a) continue, instead of the applicant, the procedure for the European patent application, taking this request on its behalf,
(b) file a new European patent application for the same invention, or
(c) request the rejection of the European patent application.
(2) Article 76, paragraph 1^er, is applicable to any new European patent application filed under paragraph 1^er (b).
Right of the inventor to be designated
Rule 62
The inventor has the right, in respect of the holder of the European patent application or the European patent, to be designated as such with the European Patent Office.
CHAPTER III. - Effects of European patent and European patent application
Duration of European patent
Rule 63
(1) The duration of the European patent is twenty years from the date of filing of the application.
(2) Paragraph 1^er shall not limit the right of a Contracting State to extend the duration of a European patent or to grant a corresponding protection from the expiry of that term to the same conditions as those applicable to national patents,
(a) to take into account a state of war or a comparable state of crisis affecting the said State;
(b) if the subject-matter of the European patent is a product or process of manufacture or use of a product that, before it is marketed in that State, is subject to an administrative procedure of authorization established by law.
(3) The provisions of paragraph 2 shall apply to European patents granted jointly for any group of Contracting States referred to in Article 142.
(4) Any Contracting State that provides for an extension of the duration of the patent or a corresponding protection in accordance with paragraph 2 (b) may, on the basis of an agreement with the Organization, transfer to the European Patent Office tasks related to the application of these provisions.
Rights conferred by the European patent
Rule 64
(1) Subject to paragraph 2, the European patent confers on its holder, from the date on which the mention of its grant is published in the European Patent Bulletin and in each of the Contracting States for which it was granted, the same rights as a national patent granted in that State.
(2) If the subject-matter of the European patent concerns a process, the rights granted by this patent extend to the products obtained directly by this process.
(3) Any infringement of the European patent is appreciated in accordance with national legislation.
European patent translation
Rule 65
(1) Any Contracting State may prescribe, where the European patent granted, maintained as amended or limited by the European Patent Office is not written in any of its official languages, that the patent holder shall provide to its central industrial property service a translation of the patent as granted, amended or limited in any of its official languages, to its choice, or, to the extent that the State has imposed the use of a specified language, The translation must be produced within three months of the date of publication in the European Patent Bulletin of the mention of the grant of the European patent or its maintenance as amended, or of its limitation, unless the State concerned gives a longer period of time.
(2) Any Contracting State that has adopted provisions under paragraph 1^er may prescribe that the patent holder shall pay, within a period fixed by that State, all or part of the costs of publishing the translation.
(3) Any Contracting State may prescribe that, if the provisions adopted under paragraphs 1^er and 2 are not observed, the European patent is, from the beginning, deemed without effect in this State.
European filing value
Rule 66
The European patent application to which a filing date has been granted has, in the designated Contracting States, the value of a regular national filing, taking into account, where appropriate, the priority right invoked in support of the European patent application.
Rights granted by the European patent application after publication
Rule 67
(1) As from its publication, the European patent application shall temporarily provide the applicant, in the Contracting States designated in the application, with the protection provided for in Article 64.
(2) Any Contracting State may provide that the European patent application does not provide protection under Article 64. However, the protection attached to the publication of the European patent application cannot be less than that which the relevant State legislation attaches to the mandatory publication of the non-examined national patent applications. In any event, each Contracting State must at least provide that, from the date of publication of the European patent application, the applicant may require a reasonable compensation, as determined under the circumstances, of any person who has exploited, in that Contracting State, the invention subject to the European patent application under conditions that, under national law, would be liable if it were a counterfeit of a national patent.
(3) Any Contracting State that does not have as an official language the language of the proceedings may provide that the provisional protection referred to in paragraphs 1^er and 2 shall be ensured only from the date on which a translation of the claims, either in one of the official languages of that State, to the choice of the applicant, or, to the extent that the State in question imposed the use of a specified official language, in that latter language:
(a) has been made accessible to the public under the conditions laid down in its national legislation, or
(b) has been handed over to the person operating in that State the invention subject to the European patent application.
(4) The effects of the European patent application in paragraphs 1^er and 2 are deemed to be null and void when the European patent application has been withdrawn, or is deemed to have been withdrawn, or has been rejected by a decision taken in force of a finding. The same is true of the effects of the European patent application in a Contracting State whose designation has been withdrawn or is deemed withdrawn.
Effects of revocation or limitation of European patent
Rule 68
The European patent application and the European patent to which it gave rise are deemed not to have had the effects provided for in Articles 64 and 67 from the very beginning, to the extent that the patent was revoked or limited during an opposition, limitation or invalidity procedure.
Scope of protection
Rule 69
(1) The scope of protection conferred by the European patent or by the European patent application is determined by the claims. However, description and drawings are used to interpret claims.
(2) For the period up to the grant of the European patent, the scope of protection conferred by the European patent application is determined by the claims contained in the application as published. However, the European patent as granted or as amended during the opposition, limitation or invalidity proceedings retroactively determines the protection conferred by the application, provided that such protection is not extended.
Text of the European patent application or the European patent authenticating
Rule 70
(1) The text of the European patent application or the European patent in the language of the procedure is the text which is authentic in all proceedings before the European Patent Office and in all Contracting States.
(2) However, if the European patent application has been filed in a language that is not an official language of the European Patent Office, this text constitutes the application as filed, within the meaning of this Agreement.
(3) Any Contracting State may provide that a translation into one of its official languages, as prescribed by that State under this Convention, is considered in that State to be the text which shall, apart from the cases of nullity proceedings, be held in that State if the European patent application or European patent in the language of translation confers less protection than that conferred by the said application or by the said patent in the language of the proceedings.
(4) Any Contracting State which makes a provision under paragraph 3,
(a) allow the applicant or the patent holder to produce a revised translation of the European patent application or European patent. This revised translation has no legal effect as long as the conditions laid down by the Contracting State under Article 65, paragraph 2, or Article 67, paragraph 3, have not been met;
(b) may provide that any person in that State has, in good faith, begun to exploit an invention or made effective and serious preparations for that purpose, without that exploitation constitutes a counterfeit of the application or patent in the text of the original translation, may, after the revised translation has taken effect, continue its operation in his or her enterprise free of charge or for the purposes of the latter.
CHAPTER IV. - European patent application as a property object
Transfer and establishment of rights
Rule 71
The European patent application may be transferred or granted the rights of one or more of the designated Contracting States.
Cession
Rule 72
The transfer of the European patent application must be made in writing and requires the signature of the parties to the contract.
Contractual licence
Rule 73
A European patent application may, in its entirety or in part, be licensed for all or part of the territories of the designated Contracting States.
Applicable law
Rule 74
Unless otherwise provided by this Convention, the European patent application as a property object shall, in each Contracting State designated and with effect in that State, be subject to the legislation applicable in that State to the national patent applications.
PART III
THE REQUEST FOR EUROPEAN BREVET
CHAPTER I^er. - Filing of the European patent application and requirements to be met
Filing of European patent application
Rule 75
(1) The European patent application may be filed:
(a) either with the European Patent Office;
(b) if the legislation of a Contracting State permits, and subject to Article 76, paragraph 1^erat the central office of industrial property or other competent authorities of that State. Any such application shall have the same effect as if it had been filed on the same date at the European Patent Office.
(2) Paragraph 1^er cannot hinder the application of the legislative or regulatory provisions which, in a Contracting State:
(a) govern inventions which cannot, because of their object, be communicated abroad without prior authorization from the competent authorities of that State, or
(b) prescribing that any patent application must initially be filed with a national authority, or submitting to a prior authorization the direct filing with another authority.
European divisional applications
Rule 76
(1) Any European patent divisional application must be filed directly with the European Patent Office in accordance with the Implementing Regulations. It may only be filed for items that do not extend beyond the content of the previous application as filed; to the extent that this requirement is met, the divisional application is deemed to be filed on the date of filing of the previous application and is entitled to priority.
(2) All Contracting States designated in the previous application when filing a European divisional patent application are deemed to be designated in the divisional application.
Transmission of European patent applications
Rule 77
(1) The central office of the industrial property of the Contracting State shall transmit to the European Patent Office the European patent applications filed with the said service or with any other competent authority of that State, in accordance with the Implementing Regulations.
(2) Any European patent application whose object has been put in secret is not transmitted to the European Patent Office.
(3) Any European patent application that is not forwarded to the European Patent Office within the time limits is deemed withdrawn.
Requirements to be met by the European patent application
Rule 78
(1) The European patent application must contain:
(a) a request for the grant of a European patent;
(b) a description of the invention;
(c) one or more claims;
(d) drawings referred to in the description or claims;
(e) a shortened,
and meet the requirements of the Implementing Regulations.
(2) The European patent application gives rise to the payment of the deposit tax and the search fee. If the filing fee or the search fee has not been paid on time, the application is deemed to be withdrawn.
Designation of Contracting States
Rule 79
(1) All Contracting States parties to this Convention when filing the European patent application are deemed to be designated in the application for the grant of the European patent.
(2) The designation of a Contracting State may result in the payment of a designation fee.
(3) The designation of a Contracting State may be withdrawn at any time until the grant of the European patent.
Deposit date
Rule 80
The date of filing of a European patent application is that to which it is satisfied with the requirements of the Implementing Regulations.
Designation of the inventor
Rule 81
The European patent application must include the inventor's designation. If the applicant is not the inventor or the sole inventor, this designation must include a statement indicating the origin of the acquisition of the right to European patent.
Invention Unit
Rule 82
The European patent application can only concern one invention or a plurality of inventions related to each other in such a way that they form only one general inventive concept.
Presentation of the invention
Rule 83
The invention must be presented in the European patent application in a sufficiently clear and complete manner so that a skilled person can execute it.
Claims
Rule 84
Claims define the subject matter of the requested protection. They must be clear and concise and based on the description.
Short
Rule 85
The abstract is used exclusively for technical information purposes; no other purpose may be taken into consideration, including the assessment of the scope of the requested protection and the application of section 54, paragraph 3.
Annual fees for European patent application
Rule 86
(1) Annual fees must, in accordance with the Implementing Regulations, be paid to the European Patent Office for any European patent application. These taxes are due for the third year, from the date of filing of the application, and for each of the following years. If an annual fee has not been paid on time, the application is deemed to be withdrawn.
(2) No annual fee is payable after the payment of the one to be paid for the year in which the mention of the grant of the European patent is published in the European Patent Bulletin.
CHAPTER II. - Priority
Right of priority
Rule 87
(1) Who has regularly deposited in or for
(a) a State Party to the Paris Convention for the Protection of Industrial Property or
(b) a member of the World Trade Organization,
a patent application for invention, utility model or utility certificate, or the applicant's cause, shall, in order to file a European patent application for the same invention, have a priority right for a period of twelve months from the date of filing of the first application.
(2) It is recognized as giving rise to the right of priority any deposit having the value of a regular national deposit under the national legislation of the State in which it was made or bilateral or multilateral agreements, including this Convention.
(3) By regular national filing, any deposit that is sufficient to establish the date on which the application was filed, regardless of the subsequent fate of the application.
(4) Is considered first application, the date of filing is the starting point of the priority period, a subsequent application having the same purpose as a previous first application, filed in or for the same State, provided that this earlier application, at the date of filing of the subsequent application, has been withdrawn, abandoned or refused, without being subject to public inspection and without letting any rights remain, and that it has not yet served the basis of the claim. The previous application can no longer serve as a basis for the claim of priority rights.
(5) If the first deposit has been made with an industrial property service that is not bound by the Paris Convention for the Protection of Industrial Property or the Agreement establishing the World Trade Organization, paragraphs 1^er to 4 shall apply if, following a communication from the President of the European Patent Office, this service recognizes that a first filing with the European Patent Office gives rise to a priority right subject to conditions and having effects equivalent to those provided for in the Paris Convention.
Prioritization
Rule 88
(1) An applicant who wishes to avail himself of the priority of an earlier filing is required to file a priority statement and any other required document in accordance with the Implementing Regulations.
(2) Multiple priorities can be claimed for a European patent application even if they come from different states. Where applicable, multiple priorities may be claimed for the same claim. If multiple priorities are claimed, the starting-point deadline is calculated from the date of the oldest priority.
(3) When one or more priorities are claimed for the European patent application, the right of priority covers only the elements of the European patent application that are contained in the application or in applications whose priority is claimed.
(4) If certain elements of the invention for which priority is claimed are not included in the claims made in the previous application, it is sufficient, in order for the priority to be granted, that all parts of the previous application disclose in a specific way the said elements.
Effect of priority right
Rule 89
As a result of the right of priority, the priority date is considered to be the filing of the European patent application for the application of Article 54, paragraphs 2 and 3, and Article 60, paragraph 2.
PART IV
PROCEDURE JUSQU'A LA DELIVRANCE
Review at filing and as to form requirements
Rule 90
(1) The European Patent Office shall examine in accordance with the Implementing Regulations if the application meets the requirements for a filing date.
(2) If a filing date cannot be granted after the review under subsection 1^er, the application is not treated as a European patent application.
(3) If a filing date has been granted to the European patent application, the European Patent Office shall examine in accordance with the Implementing Regulations if it is satisfied with the requirements of Articles 14, 78, 81 and, where applicable, Article 88, paragraph 1^er, and section 133, paragraph 2, as well as any other requirement under the Implementing Regulations.
(4) When the European Patent Office finds, during the examination conducted under paragraphs 1^er or 3, the existence of irregularities to which it may be remedied, it gives the applicant the opportunity to remedy these irregularities.
(5) When it is not addressed to an irregularity noted in the examination conducted under paragraph 3, the European patent application is rejected. When irregularity concerns the right of priority, it results in the loss of this right for the application.
Examination of European patent application for certain irregularities
Rule 91
(suppressed)
Establishment of the European research report
Rule 92
The European Patent Office shall prepare and publish, in accordance with the Implementing Regulations, a European search report on the European patent application on the basis of the claims, with due regard to the description and the existing drawings.
Publication of European patent application
Rule 93
(1) The European Patent Office publishes the European patent application as soon as possible
(a) after the expiry of a period of eighteen months from the filing date or, if a priority has been claimed, from the priority date or
(b) before the expiry of this period upon request of the applicant.
(2) The European patent application is published on the same date as the European patent fascicle when the decision on the grant of the European patent takes effect before the expiry of the period referred to in paragraph 1^er (a).
Examination of European patent application
Rule 94
(1) Upon request, the European Patent Office shall examine in accordance with the Implementing Regulations if the European patent application and the invention which is the subject of the application meets the requirements of this Agreement. The application is deemed to be filed only after the examination fee is paid.
(2) Where the application for review is not filed within the time limit, the application is deemed to be withdrawn.
(3) If the examination results in a review that the application or invention that is the subject of this Agreement does not meet the requirements of this Agreement, the Examining Division invites the applicant, as often as necessary, to submit its observations and, subject to section 123, paragraph 1^er, to amend the application.
(4) If the applicant fails to respond to a notification from the Examining Division, the application is deemed to be withdrawn.
Extension of time limit for submission of the request for consideration
Rule 95
(suppressed)
Examination of European patent application
Rule 96
(suppressed)
Deliverance or rejection
Rule 97
(1) If the Examining Division considers that the European patent application and the invention which is the subject of this Agreement meet the requirements of this Convention, it decides to grant the European patent, provided that the conditions provided for in the Implementing Regulations are met.
(2) If the Examining Division considers that the application for a European patent or the invention that is the subject of the application does not meet the requirements of this Agreement, it rejects the application, unless this Convention provides a different legal consequence.
(3) The decision on the grant of the European patent takes effect on the date on which the mention of the grant is published in the European Patent Bulletin.
Publication of the European patent fascicle
Rule 98
The European Patent Office publishes the fascicle of the European patent as soon as possible after the publication of the mention of the grant of the European patent to the European Patent Bulletin.
PART
PROCEDURE FOR PROPOSAL AND LIMITATION
Opposition
Rule 99
(1) Within nine months of the publication of the mention of the grant of the European patent in the European Patent Bulletin, any person may object to this patent with the European Patent Office in accordance with the Implementing Regulations. The opposition is deemed to be formed only after payment of the opposition fee.
(2) The opposition to the European patent affects this patent in all Contracting States in which it produces its effects.
(3) Opponents are parties, together with the patent holder, to the opposition proceedings.
(4) If a person proves that, in a Contracting State, he or she is registered in the patent registry, by virtue of a decision passed in force of a judgment, in the place and place of the previous holder, he or she is, on request, substituted for the latter for that State. Notwithstanding section 118, the previous proprietor of the patent and the person thus asserting his or her rights are not considered to be co-owners unless they both request it.
Reasons for opposition
Rule 100
The opposition can only be based on the following reasons:
(a) the subject matter of the European patent is not patentable under Articles 52 to 57;
(b) the European patent does not state the invention sufficiently clear and complete so that a skilled person can execute it;
(c) the subject-matter of the European patent extends beyond the content of the application as filed or, if the patent has been granted on the basis of a divisional application or a new application filed under section 61, beyond the content of the previous application as filed.
Examination of opposition - Revocation or maintenance of European patent
Rule 101
(1) If the opposition is admissible, the Opposition Division shall examine in accordance with the Implementing Regulations if at least one opposition ground referred to in Article 100 is opposed to the maintenance of the European patent. During this review, the Opposition Division invites the parties, as often as necessary, to submit their comments on the notifications it has sent to them or on communications from other parties.
(2) If the Opposition Division considers that at least one opposition ground is opposed to the maintenance of the European patent, it revokes the patent. Otherwise, it rejects the opposition.
(3) If the Opposition Division considers that, in the light of the changes made by the European patent holder during the opposition proceedings, the patent and the invention which is the subject of it
(a) meet the requirements of this Agreement, it decides to maintain the patent as amended, provided that the conditions provided for in the Implementing Regulations are met;
(b) do not meet the requirements of this Agreement, it revokes the patent.
Revocation or maintenance of the European patent
Rule 102
(suppressed)
Publication of a new fascicle of the European patent
Rule 103
If the European patent has been maintained as amended under Article 101, paragraph 3 (a), the European Patent Office shall publish a new European Patent Paper as soon as possible after the publication of the reference to the opposition decision in the European Patent Bulletin.
Fees
Rule 104
(1) Each of the parties to the opposition proceedings shall bear the costs it has exposed, unless the opposition division ceases, in accordance with the Implementing Regulations, a different apportionment of the costs to the extent that fairness requires it.
(2) The Implementing Regulations determine the procedure for setting costs.
(3) Any final decision of the European Patent Office fixing the amount of the fee shall, for the purpose of its execution in the Contracting States, be deemed to be a decision rendered in force by a civil court of the State in which such execution shall take place. The control of such a decision can only concern its authenticity.
Intervention by the alleged offender
Rule 105
(1) Any third party may, after the expiry of the opposition period, intervene in the opposition proceedings in accordance with the Implementing Regulations, provided that it provides evidence
(a) that a counterfeit action based on this patent has been brought against it, or
(b) that after having been required by the patent proprietor to cease the alleged infringement of this patent, he introduced an action against the patent holder to indicate that he is not a counterfeit.
(2) An admissible intervention is assimilated to an opposition.
Application for limitation or revocation
Article 105 bis
(1) At the request of the patent holder, the European patent may be revoked or limited by a modification of the claims. The application must be submitted to the European Patent Office in accordance with the Implementing Regulations. It is deemed to be filed only after payment of the limitation or revocation fee.
(2) The application cannot be filed until an opposition procedure relating to the European patent is pending.
Limitation or revocation of the European patent
Rule 105ter
(1) The European Patent Office examines whether it is satisfied with the requirements of the Implementing Regulations for a limitation or revocation of the European patent.
(2) If the European Patent Office considers that the application for limitation or revocation of the European patent meets these requirements, it decides, in accordance with the Implementing Regulations, to limit or revoke the European patent. Otherwise, he rejects the request.
(3) The decision on limitation or revocation affects the European patent with effect in all Contracting States for which it was granted. It takes effect on the date on which the reference to the decision is published in the European Patent Bulletin.
Publication of modified European patent fascicle
Article 105quater
When the European patent has been limited under Article 105ter, paragraph 2, the European Patent Office shall publish the amended European patent booklet as soon as possible after the mention of the limitation to the European Patent Bulletin.
PART I
PROCEDURE
Decisions that may be appealed
Rule 106
(1) Decisions of the filing section, review divisions, opposition divisions and the legal division are subject to appeal. The appeal has a suspensive effect.
(2) A decision that does not terminate a proceeding with respect to one of the parties may be appealed only with the final decision, unless the decision provides for an independent remedy.
(3) The right to appeal against decisions relating to the apportionment or fixing of costs of the opposition proceedings may be limited in the Implementing Regulations.
Persons admitted to appeal and parties to proceedings
Rule 107
Any party to the proceedings in which a decision has not been granted may appeal against that decision. The other parties to this procedure shall be parties to the appeal proceedings.
Time and form
Rule 108
The appeal must be filed, in accordance with the Implementing Regulations, with the European Patent Office within two months from the meaning of the decision. The appeal is deemed to be filed only after payment of the appeal fee. A statement of grounds for appeal must be filed within four months of the meaning of the decision, in accordance with the Implementing Regulations.
Prejudicial review
Rule 109
(1) If the proceeding under appeal considers the appeal to be admissible and justified, it must be entitled to it. This provision does not apply where the proceedings preclude the appellant from another party.
(2) If the appeal is not granted within three months of receipt of the statement of grounds, the appeal must be immediately referred to the Board of Appeal, without notice on the merits.
Review of appeal
Rule 110
If the appeal is admissible, the Board of Appeal shall consider whether it is entitled to do so. The review of the appeal is conducted in accordance with the Implementing Regulations.
Decision on appeal
Rule 111
(1) Following the examination on the merits of the appeal, the board of appeal shall decide on the appeal. It may either exercise the jurisdiction of the proceeding that rendered the decision under appeal or refer the case to the proceeding for action.
(2) If the Board of Appeal refers the matter to the proceeding that rendered the decision under appeal, this proceeding shall be bound by the reasons and procedures of the decision of the Board of Appeal, provided that the facts of the case are the same. If the decision under appeal has been rendered by the filing section, the Examining Division is also bound by the grounds and procedures of the Board of Appeal's decision.
Decision or opinion of the Enlarged Board of Appeal
Article 112
(1) In order to ensure uniform application of the law or if a question of fundamental law is raised:
(a) the Board of Appeal, either on its own or at the request of one of the parties, shall, in the course of a proceeding, appeal to the Enlarged Board of Appeal when it considers that a decision is necessary for such purposes. When the Board of Appeal rejects the request, it must justify its refusal in its final decision;
(b) the President of the European Patent Office may submit a question of law to the Enlarged Board of Appeal when two Boards of Appeal have rendered different decisions on this issue.
(2) In the cases referred to in paragraph 1^er (a), the parties to the appeal proceedings are parties to the proceedings before the Enlarged Board of Appeal.
(3) The decision of the Enlarged Board of Appeal referred to in paragraph 1^er (a) binding the Appeals Chamber on the appeal pending.
Request for review by the Enlarged Board of Appeal
Article 112bis
(1) Any party to an appeal procedure in respect of which the decision of the board of appeal has not been granted may file a request for a review of the decision by the Enlarged Board of Appeal.
(2) The request may only be based on the following grounds:
(a) a member of the board of appeal participated in the decision in violation of article 24, paragraph 1^eror despite its exclusion under a decision made pursuant to section 24, paragraph 4;
(b) a person who is not a member of the boards of appeal participated in the decision;
(c) the appeal procedure has been followed by a fundamental violation of article 113;
(d) the appeal procedure was terminated by another fundamental procedural violation as defined in the Implementing Regulations; or
(e) a criminal offence established under the conditions set out in the Implementing Regulations may have an impact on the decision.
(3) The request for review has no suspensive effect.
(4) The request must be submitted and substantiated in accordance with the Implementing Regulations. If the request is based on paragraph 2 (a) to (d), it must be submitted within two months of the meaning of the decision of the Board of Appeal. If the request is based on paragraph 2(e), it must be submitted within two months after the criminal offence has been established and in any event not more than five years after the decision of the Board of Appeal has been served. The application for review is deemed to be filed only after the payment of the prescribed fee.
(5) The Enlarged Board of Appeal examines the request for review in accordance with the Implementing Regulations. If the request is substantiated, the Enlarged Board of Appeal shall revoke the decision and, in accordance with the Implementing Regulations, reopen the proceedings before the Boards of Appeal.
(6) Any person in a designated Contracting State has, in good faith, in the period between the decision of the Board of Appeal and the publication in the European Patent Bulletin of the mention of the decision of the Enlarged Board of Appeal on the application for review, commenced or made effective and serious preparations to exploit the invention that is the subject of a published European patent application or a European patent, may, as a free undertaking, continue the operation of the invention.
SEPTI'ME PARTI
COMMON PROVISIONS
CHAPTER I^er. - General procedural provisions
Right to be heard and basis of decisions
Article 113
(1) The decisions of the European Patent Office can only be based on reasons on which the parties were able to take a position.
(2) The European Patent Office shall examine and make a decision on the European patent application or European patent only in the text proposed or accepted by the applicant or the patent holder.
Board review
Article 114
(1) During the proceedings, the European Patent Office conducts an ex officio examination of the facts; This review is not limited to the means invoked or to requests made by the parties.
(2) The European Patent Office may not take into account the facts that the parties did not invoke or the evidence that they did not produce in a timely manner.
Comments by third parties
Rule 115
In any proceedings before the European Patent Office, any third party may, in accordance with the Implementing Regulations, submit after the publication of the European patent application comments on the patentability of the invention subject to the application or patent. The third party does not acquire the quality of party to the procedure.
Oral proceedings
Article 116
(1) It is used in the oral proceedings either as an ex officio case when the European Patent Office considers it useful or upon request of a party to the proceedings. However, the European Patent Office may reject a request that the oral proceedings be repeated in the same proceedings as long as the parties and the facts of the case are the same.
(2) However, it is not used, upon request of the applicant, to oral proceedings before the filing section only when the applicant considers it useful or when the applicant intends to reject the European patent application.
(3) Oral proceedings before the filing section, examining divisions and the legal division are not public.
(4) The oral proceedings, including the ruling, shall be open to the Boards of Appeal and the Enlarged Board of Appeal after the publication of the European patent application as well as to the opposition divisions, unless otherwise decided by the proceeding before it, in the event that the advertisement could present, in particular for a party to the proceedings, serious and unjustified disadvantages.
Evidence and instruction
Article 117
(1) In proceedings before the European Patent Office, the following measures of instruction may be taken:
(a) the hearing of the parties;
(b) the request for information;
(c) the production of documents;
(d) the hearing of witnesses;
(e) expertise;
(f) descent at the scene;
(g) written statements made under the oath.
(2) The Implementing Regulations determine the instruction procedure.
The uniqueness of the European patent application or European patent
Article 118
When applicants or holders of a European patent are not the same for different Designated Contracting States, they are considered co-applicants or co-owners for the purposes of the proceedings before the European Patent Office. The uniqueness of the application or patent during this procedure is not affected; in particular, the text of the application or patent shall be identical for all designated Contracting States, unless otherwise provided by this Convention.
Meaning
Rule 119
Decisions, citations, notifications and communications shall be served by the European Patent Office in accordance with the Implementing Regulations. The meanings may be made, where exceptional circumstances require it, through the central services of the industrial property of the Contracting States.
Time limits
Rule 120
The Implementing Regulations determine:
(a) the deadlines that must be observed in proceedings before the European Patent Office and which are not set out in this Convention;
(b) the method of calculating deadlines and the conditions under which they may be extended;
(c) the minimum and maximum duration of the deadlines that are provided by the European Patent Office.
Continuation of the European patent application procedure
Rule 121
(1) Where the applicant has not observed a time limit for the European Patent Office, the applicant may request the continuation of the European patent application procedure.
(2) The European Patent Office shall grant the application if it is satisfied with the requirements set out in the Implementing Regulations. Otherwise, he rejects the request.
(3) When the request is granted, the legal consequences of non-observing the time limit are deemed not to have occurred.
(4) The time limits provided for in article 87, paragraph 1 shall be excluded from the continuation of the proceedings^erin article 108 and article 112 bis, paragraph 4, as well as the deadlines for the submission of the request for the prosecution of the proceedings and the request for restitutio in integrum. Implementing regulations may exclude further delays in the prosecution of proceedings.
Restitutio in integrum
Article 122
(1) The applicant or the holder of a European patent who, although having demonstrated all the vigilance required by the circumstances, has not been able to observe a period of time with respect to the European Patent Office is, upon request, restored in its rights if the non-observance of this period directly results in the rejection of the European patent application or of a request, the fact that the application is deemed to be withdrawn, the revocation of any European patent
(2) The European Patent Office shall be entitled to the request if it is satisfied with the requirements of paragraph 1^er and the requirements of the regulations. Otherwise, he rejects the request.
(3) When the request is granted, the legal consequences of non-observing the time limit are deemed not to have occurred.
(4) Is excluded from the restitutio in integrum the time limit for submitting the request for restitutio in integrum. Implementing regulations may exclude other time limits from restitutio in integrum.
(5) Any person in a designated Contracting State has, in good faith, in the period between the loss of a right referred to in paragraph 1^er and the publication in the European Patent Bulletin of the mention of the re-establishment of the said right, begun to exploit or has made effective and serious preparations to exploit the invention which is the subject of a published European patent application or a European patent, may, as a free measure, continue this operation in its company or for the needs of it.
(6) This Article shall not affect the right of a Contracting State to grant restitutio in integrum with respect to the time limits provided for in this Convention and to observe with respect to the authorities of that State.
Amendments
Article 123
(1) The European patent application or the European patent may be amended in the proceedings before the European Patent Office in accordance with the Implementing Regulations. In any event, the applicant may, on its own initiative, amend the application at least once.
(2) The European patent application or the European patent may not be amended so that its object extends beyond the content of the application as filed.
(3) The European patent cannot be modified to extend the protection it gives.
Information on the state of the technique
Rule 124
(1) The European Patent Office may invite the applicant, in accordance with the Implementing Regulations, to provide information on the state of the technology that has been taken into account in national or regional patent procedures and that deals with an invention subject to the European patent application.
(2) If the applicant does not respond within the time limit to the invitation referred to in subsection 1^er, the European patent application is deemed to be withdrawn.
Reference to general principles
Rule 125
In the absence of a procedural provision in this Convention, the European Patent Office shall take into consideration the principles generally accepted in this matter in the Contracting States.
End of financial obligations
Rule 126
(suppressed)
CHAPTER II. - Public and official authorities information
European Patent Register
Article 127
The European Patent Office maintains a European Patent Register, which lists all the indications mentioned in the Implementing Regulations. No registration is entered into the European Patent Register before the European patent application has been published. The European Patent Register is open to public inspection.
Public inspection
Rule 128
(1) Records relating to European patent applications that have not yet been published can only be opened to public inspection with the applicant's agreement.
(2) Anyone who proves that the applicant has availed himself of his European patent application against him may consult the file before the publication of this application and without the applicant's consent.
(3) Where a divisional application or a new European patent application filed under Article 61, paragraph 1^er, is published, any person may consult the record of the application prior to the publication of the application and without the applicant's consent.
(4) After the publication of the European patent application, the files of the application and the European patent to which it took place may, upon request, be opened to the public inspection, subject to the restrictions provided by the Implementing Regulations.
(5) The European Patent Office may, even before the publication of the European patent application, communicate to third parties or publish the information referred to in the Implementing Regulations.
Recurrent
Rule 129
The European Patent Office publishes periodically:
(a) a European Patent Bulletin containing the information prescribed by this Agreement, the Implementing Regulations or the President of the European Patent Office;
(b) an Official Journal containing communications and general information from the President of the European Patent Office and any other information relating to this Convention and its application.
Exchange of information
Rule 130
(1) Unless otherwise provided by this Convention or national legislation, the European Patent Office and the central industrial property services of the Contracting States shall, upon request, communicate any useful information on European or national patent applications and European or national patents and the procedures concerning them.
(2) Paragraph 1^er applies to the exchange of information, under working agreements, between the European Patent Office, on the one hand, and on the other:
(a) the central services of industrial property of other States;
(b) any intergovernmental patenting organization;
(c) any other organization.
(3) Information communications made pursuant to paragraph 1^er and paragraph 2 (a) and (b) are not subject to the restrictions provided for in section 128. The Governing Council may decide that the communications made pursuant to paragraph 2 (c) are not subject to the restrictions provided for in Article 128, provided that the organization concerned handles the information communicated confidentially until the date of publication of the European patent application.
Administrative and judicial cooperation
Article 131
(1) Unless otherwise provided by this Convention or by national legislation, the European Patent Office and the competent courts or other authorities of the Contracting States shall, upon request, sit each other by communicating information or records. Where the European Patent Office makes records available to courts, government departments or central industrial property services for consultation purposes, it is not subject to the restrictions provided for in section 128.
(2) At the request of the European Patent Office, the courts or other competent authorities of the Contracting States shall, within the limits of their competence, carry out the investigation measures or other legal acts.
Exchange of publications
Rule 132
(1) The European Patent Office and the central industrial property services of the Contracting States shall exchange on request, for their own needs and free of charge, one or more copies of their respective publications.
(2) The European Patent Office may enter into agreements on the exchange or sending of publications.
CHAPTER III. - Representation
General principles of representation
Article 133
(1) Subject to the provisions of paragraph 2, no person shall be required to be represented by an authorized representative in the procedures established by this Convention.
(2) The natural and legal persons who have neither their domicile nor their seat in a Contracting State shall be represented by an authorized representative, and shall act through it, in any procedure established by this Agreement, except for the filing of a European patent application; other exceptions may be provided by the Implementing Regulations.
(3) Physical and legal persons who have their domicile or seat in a Contracting State may act through an employee in any procedure established by this Agreement; the employee, who must have a power in accordance with the provisions of the regulations, is not required to be an authorized agent. The Implementing Regulations may provide for whether and under what conditions an employee of a legal entity may also act for other legal persons who have their seat in a Contracting State and have economic ties with it.
(4) Specific provisions relating to the common representation of parties acting in common may be provided in the Implementing Regulations.
Representation before the European Patent Office
Rule 134
(1) The representation of natural or legal persons in the proceedings established by this Convention shall be ensured only by the authorized agents registered on a list held for that purpose by the European Patent Office.
(2) Any physical person who
a) has the nationality of a Contracting State,
(b) has its professional domicile or place of employment in a Contracting State and
(c) met the tests of the European qualification examination,
may be listed on the list of authorized agents.
(3) For a period of one year from the date on which the accession of a State to this Convention takes effect, may also request to be included in the list of authorized agents any natural person who
a) has the nationality of a Contracting State,
(b) has its professional domicile or place of employment in the State which has acceded to the Convention and
(c) is authorized to represent in respect of patents of invention of natural or legal persons before the central office of industrial property of that State.
In the event that this authorization is not subject to the requirement of a special professional qualification, the person must have acted in that State as a regular representative for at least five years.
(4) The registration is made on request with certificates indicating that the conditions referred to in paragraph 2 or 3 are met.
(5) Persons on the list of authorized agents shall be entitled to act in any procedure established by this Convention.
(6) For the purpose of acting as an authorized agent, any person on the list of authorized agents is entitled to have a professional domicile in any Contracting State in which the procedures established by this Convention take place, taking into account the protocol on the centralization annexed to this Convention. The authorities of this State may withdraw this authorization only in special cases and under national law relating to public order and public security. The President of the European Patent Office must be consulted before such action is taken.
(7) The President of the European Patent Office may grant an exemption:
(a) the requirement under subsection 2(a) or subsection 3(a) in particular circumstances;
(b) the requirement referred to in paragraph 3(c), second sentence, if the applicant demonstrates that he has otherwise acquired the qualifications required.
(8) Representation in the same capacity as an authorized representative in the proceedings established by this Convention may be provided by any lawyer authorized to practise in one of the Contracting States and in which he or she has his or her professional domicile, to the extent that he or she may act in that State as an agent in the field of invention patents. The provisions of paragraph 6 shall apply.
Institute of Chartered Agents near the European Patent Office
Article 134bis
(1) The Board of Directors has jurisdiction to determine and amend provisions relating to:
(a) at the Institute of Chartered Agents near the European Patent Office, hereinafter referred to as the Institute;
(b) the qualification and training required for admission to the European qualifying examination and the organization of the tests for that examination;
(c) the disciplinary power of the Institute or the European Patent Office on authorized agents;
(d) the confidentiality obligation of the authorized agent and the right of the authorized agent to refuse to disclose in proceedings before the European Patent Office communications exchanged between him and his client or any other person.
(2) Any person on the list of authorized agents referred to in section 134, paragraph 1^er, is a member of the Institute.
PART I
INCIDENCE ON NATIONAL LAW
CHAPTER I^er. - Transformation into a national patent application
Request for processing
Rule 135
(1) The central service of the industrial property of a designated Contracting State shall, upon request of the applicant or the holder of a European patent, initiate the procedure for the grant of a national patent in the following cases:
(a) if the European patent application is deemed to be withdrawn under Article 77, paragraph 3;
(b) in other cases provided for in national legislation where, under this Convention, the European patent application is either rejected or withdrawn or deemed withdrawn or the European patent revoked.
(2) In the case referred to in paragraph 1^er (a), the request for processing must be submitted to the national central industrial property service to which the European patent application had been filed. Subject to national defence provisions, this service shall transmit the request directly to the central services of the Contracting States mentioned therein.
(3) In the cases referred to in paragraph 1^er (b), the processing request must be submitted to the European Patent Office in accordance with the Implementing Regulations. It is deemed to be filed only after payment of the processing tax. The European Patent Office shall transmit the application to the central industrial property services of the Contracting States mentioned therein.
(4) The European patent application ceases to produce the effects referred to in Article 66 if the request for processing is not forwarded in due time.
Submission and transmission of the request
Rule 136
(suppressed)
Formal conditions of transformation
Rule 137
(1) A European patent application transmitted in accordance with Article 135, paragraph 2 or 3, may not, in its form, be subject to conditions different from those provided for in this Convention or to additional conditions.
(2) The central industrial property service to which the European patent application is transmitted may require that, within a period not less than two months, the applicant:
(a) pay the national filing fee, and
(b) produce, in one of the official languages of the State concerned, a translation of the original text of the European patent application and, where applicable, a translation of the amended text during the proceedings before the European Patent Office, on the basis of which it wishes to proceed the national procedure.
CHAPTER II. - Nullity and prior rights
Nullity of European patents
Article 138
(1) Subject to Article 139, the European patent may only be declared null, with effect for a Contracting State, if:
(a) the subject matter of the European patent is not patentable under Articles 52 to 57;
(b) the European patent does not state the invention sufficiently clear and complete so that a skilled person can execute it;
(c) the subject-matter of the European patent extends beyond the content of the application as filed or, where the patent has been granted on the basis of a divisional application or a new application filed under section 61, if the subject-matter of the patent extends beyond the content of the previous application as filed;
(d) the protection conferred by the European patent has been extended; or
(e) the holder of the European patent did not have the right to obtain it under Article 60, paragraph 1^er.
(2) If the grounds for nullity affect the European patent only in part, it is limited by a corresponding modification of the claims and is declared partially null.
(3) In proceedings before the competent court or administration concerning the validity of the European patent, the patent holder is entitled to limit the patent by modifying the claims. The patent thus limited serves as the basis for the procedure.
Prior rights and rights that have been born on the same date
Article 139
(1) In any designated Contracting State, a European patent application or a European patent shall be treated from the perspective of prior rights, in relation to a national patent application or a national patent, in the same manner as if it were a national patent application or a national patent.
(2) A national patent application or a national patent of a Contracting State shall be treated from the point of view of the preceding rights, in relation to a European patent that designates that Contracting State, in the same manner as if that European patent was a national patent.
(3) Any Contracting State remains free to decide whether and under what conditions may be accumulated the protections provided to an invention exposed both in a patent application or a European patent and in a patent application or a national patent having the same date of filing or, if a priority is claimed, the same priority date.
CHAPTER III. - Other implications for national law
National utility models and certificates
Rule 140
Articles 66, 124, 135, 137 and 139 are applicable to utility models or certificates of utility as well as related requests in Contracting States whose legislation provides for such protection titles.
Annual European patent taxes
Article 141
(1) Annual fees due under the European patent may only be collected for the years following the year referred to in Article 86, paragraph 2.
(2) If annual fees due under the European patent expire within two months of the date on which the mention of the grant of the patent has been published, such annual fees are deemed to have been validly paid subject to payment within the time limit mentioned. There is no overtax under national regulations.
PART NEUVI
SPECIAL AGREEMENTS
Unitary patent
Article 142
(1) Any group of contracting States which, in a particular agreement, has arranged that the European patents granted for these States will have a unitary character on all their territories, may provide that European patents can only be granted jointly for all these States.
(2) The provisions of this Part shall apply where a group of Contracting States has used the faculty referred to in paragraph 1^er.
Special proceedings of the European Patent Office
Rule 143
(1) The group of Contracting States may assign additional tasks to the European Patent Office.
(2) It may, for the performance of these additional tasks, be established at the European Patent Office of special bodies common to the States belonging to this group. The President of the European Patent Office is responsible for these special bodies; the provisions of Article 10, paragraphs 2 and 3, shall apply.
Representation before special bodies
Article 144
The group of Contracting States may provide for a special regulation for the representation of the parties before the bodies referred to in Article 143, paragraph 2.
Board of Directors' small committee
Rule 145
(1) The group of contracting States may establish a small committee of the Board of Directors to monitor the activity of the special bodies established under Article 143, paragraph 2; the European Patent Office shall make available to this Committee the personnel, premises and material means necessary to carry out its mission. The President of the European Patent Office is responsible for the activities of special bodies before the Board of Directors' Small Committee.
(2) The composition, competence and activities of the Small Committee shall be determined by the group of contracting States.
Coverage of special tasks costs
Article 146
As long as a group of contracting States has assigned additional tasks to the European Patent Office within the meaning of Article 143, it shall bear the costs incurred by the Organization in carrying out these tasks. If special bodies have been established within the European Patent Office for the execution of these additional tasks, the group of contracting States shall bear the costs of personnel, premises and equipment attributable to such bodies. Articles 39, paragraphs 3 and 4, and articles 41 and 47 are applicable.
Payments under Unit Patent Maintenance Tax
Rule 147
If the group of Contracting States has established a single scale for annual taxes, the percentage referred to in Article 39, paragraph 1^eris calculated on this single scale; the minimum referred to in section 39, paragraph 1^er, is also a minimum for the unitary patent. Section 39, paragraphs 3 and 4, is applicable.
European patent application as a property object
Article 148
(1) Article 74 is applicable where the group of Contracting States has not provided for other provisions.
(2) The group of contracting States may prescribe that the European patent application, provided that these contracting States are designated, may not be transferred, be subject to a dwarf or forced execution only for all these contracting States and in accordance with the provisions of the particular agreement.
Joint designation
Rule 149
(1) The group of contracting States may prescribe that the designation of the States of the group can only be done jointly and that the designation of one or more States of that group is to be designated as a whole.
(2) Where the European Patent Office is the designated office within the meaning of Article 153, paragraph 1^erparagraph 1^er of this Article shall apply if the applicant makes known in the international application that he intends to obtain a European patent for the States of the group that he has designated or for one of them only. This provision is also applicable where the applicant has designated in the international application a Contracting State belonging to that group, if the legislation of that State provides that a designation of that State has the effect of a European patent application.
Other agreements between Contracting States
Article 149bis
(1) This Convention shall not be construed in that it limits the right of all Contracting States or of several of them to enter into special agreements on matters relating to European patent applications or European patents which, under this Convention, fall under national law and are governed by it, such as:
(a) an agreement establishing a jurisdiction of European patents common to Contracting States parties to the agreement;
(b) an agreement establishing a common entity to the Contracting States parties to the agreement which shall, upon request of the quasi-judicial authorities, give notices on matters relating to European patent law or to national law harmonized with it;
(c) an agreement under which the Contracting States parties to the Agreement waive in whole or in part the translations of European patents provided for in Article 65;
(d) an agreement under which Contracting States parties to the agreement provide that the translations of European patents required in accordance with Article 65 may be filed with the European Patent Office and published by the European Patent Office.
(2) The Board of Directors has jurisdiction to decide that
(a) members of the Boards of Appeal or the Enlarged Board of Appeal may be a member of a European patent court or common entity and take part in proceedings before that jurisdiction or entity in accordance with such agreement;
(b) the European Patent Office shall provide a common entity with the support staff, premises and material means necessary for the fulfilment of its mission, and that the Organization shall in whole or in part bear the costs associated with that entity.
PART DIXTH
INTERNATIONAL REQUESTS FOR SENSUS OF COOPERATION IN THE MATERIAL OF BREVETS - EURO-PCT REQUESTS
Application of the Patent Cooperation Treaty
Article 150
(1) The Patent Cooperation Treaty of 19 June 1970, referred to as PCT, applies in accordance with the provisions of this Part.
(2) International applications filed under the PCT may be subject to procedures before the European Patent Office. In these procedures, the provisions of the PCT, its implementing regulations and, as a supplementary measure, those of this Convention are applicable. The provisions of the PCT or its enforcement regulations shall prevail in the event of a discrepancy.
The European Patent Office, receiving office
Article 151
The European Patent Office acts as a receiving office within the meaning of the PCT, in accordance with the Implementing Regulations. Section 75, paragraph 2, is applicable.
The European Patent Office, International Research Administration or International Preliminary Examination Administration
Rule 152
The European Patent Office acts as an administration responsible for international research and as an administration responsible for international preliminary examination within the meaning of the PCT, in accordance with an agreement between the Organization and the International Bureau of the World Intellectual Property Organization, for applicants who are a national of a State party to this Convention, either home or seat there. This agreement may provide that the European Patent Office also acts for other applicants.
The European Patent Office, designated office or elected office
Rule 153
(1) The European Patent Office is
a) designated office for any State Party to this Convention for which the PCT is in force, which is designated in the international application and for which the applicant wishes to obtain a European patent, and
(b) elected office, when the applicant elected a designated State in accordance with letter (a).
(2) An international application for which the European Patent Office is designated or elected and to which an international filing date has been granted, has the value of a regular European application (Euro-PCT application).
(3) The international publication of a Euro-PCT application in an official language of the European Patent Office replaces the publication of the European patent application and is referred to in the European Patent Bulletin.
(4) If the Euro-PCT application is published in another language, a translation into one of the official languages must be filed with the European Patent Office, which publishes it. Subject to Article 67, paragraph 3, the provisional protection provided for in Article 67, paragraphs 1^er and 2, is only insured from the date of this publication.
(5) The Euro-PCT application shall be treated as a European patent application and shall be considered to be included in the state of the art within the meaning of Article 54, paragraph 3, if the conditions provided for in paragraph 3 or 4 and in the Implementing Regulations are met.
(6) The international research report on a Euro-PCT application or the declaration that replaces it and their international publication replaces the European research report and the mention of its publication in the European Patent Bulletin.
(7) A supplementary European search report on any Euro-PCT application referred to in paragraph 5. The Board may decide that it is renounced to a supplementary search report or that the search fee is reduced.
European Patent Office, International Research Administration
Article 154
(suppressed)
European Patent Office, International Preliminary Examination Administration
Article 155
(suppressed)
The European Patent Office, Office elected
Article 156
(suppressed)
International Research Report
Article 157
(suppressed)
Publication of the international application and communication to the European Patent Office
Article 158
(suppressed)
ONZI'M PART
TRANSITIONAL PROVISIONS
(suppressed)
DOUZI
FINAL PROVISIONS
Implementing Regulations and Protocols
Article 164
(1) The Implementing Regulations, the Protocol on Recognition, the Protocol on Privileges and Immunities, the Protocol on Centralization, the Interpretive Protocol to Article 69 and the Protocol on Staffing are an integral part of this Convention.
(2) In the event of a discrepancy between the provisions of this Convention and those of the Implementing Regulations, the provisions of the Convention shall prevail.
Signature - Ratification
Rule 165
(1) This Agreement shall be open until 5 April 1974 for signature by the States that participated in the Intergovernmental Conference for the Institution of a European Patent System or that were informed of the holding of this Conference and to which the power to participate was offered.
(2) This Convention is subject to ratification; instruments of ratification are deposited with the Government of the Federal Republic of Germany.
Access
Article 166
(1) This Convention is open to accession:
(a) of the States referred to in Article 165, paragraph 1^er;
(b) any other European State, at the invitation of the Board of Directors.
(2) Any State that has been a party to this Convention and has ceased to be a party to it pursuant to Article 172, paragraph 4, may once again become a party to the Convention by acceding to it.
(3) The instruments of accession are deposited with the Government of the Federal Republic of Germany.
Reservations
Article 167
(suppressed)
Field of territorial application
Rule 168
(1) Any Contracting State may declare, in its instrument of ratification or accession, or at any later time, in a notification addressed to the Government of the Federal Republic of Germany, that the agreement is applicable to one or more territories for which it assumes responsibility for external relations. The European patents granted for this Contracting State also have effect on the territories for which this declaration took effect.
(2) If the declaration referred to in paragraph 1^er is included in the instrument of ratification or accession, it takes effect on the same date as ratification or accession; if the declaration is made in a notification after the deposit of the instrument of ratification or accession, the notification shall take effect six months after the date of its receipt by the Government of the Federal Republic of Germany.
(3) Any Contracting State may at any time declare that the agreement ceases to be applicable to certain or all of the territories for which it has made a declaration under paragraph 1^er. This declaration shall take effect upon the expiry of a period of one year from the date on which the Government of the Federal Republic of Germany has received notification.
Entry into force
Rule 169
(1) This Agreement shall enter into force three months after the deposit of the last of the instruments of ratification or accession of six States in whose territory the total number of patent applications filed in 1970 amounted to at least 180,000 for all such States.
(2) Any ratification or accession after the entry into force of this Convention shall take effect on the first day of the third month following the deposit of the instrument of ratification or accession.
Initial
Rule 170
(1) Any State that ratifies or accedes to this Convention after its entry into force shall make an initial assessment to the Organization that shall not be refunded.
(2) The initial assessment shall be equal to 5% of the amount resulting, for such a State, from the application, in the total amount of the amounts due by the other Contracting States for the prior budgetary periods, of the key to the allocation of exceptional financial contributions under Article 40, paragraphs 3 and 4, as it is in force on the date on which the ratification or accession of that State takes effect.
(3) In the event that exceptional financial contributions have not been required for the fiscal year preceding the date referred to in paragraph 2, the distribution key referred to in this paragraph is that which would have been applicable to the State concerned for the last fiscal year for which exceptional financial contributions have been called.
Duration of the convention
Article 171
This Convention shall be concluded without limitation of time.
Revision
Rule 172
(1) This Convention may be revised by a conference of the Contracting States.
(2) The conference is prepared and convened by the Board of Directors. It shall only deliberate validly if at least three quarters of the Contracting States are represented therein. To be adopted, the revised text of the Convention must be approved by three quarters of the Contracting States represented at the conference and voting. Abstention is not considered a vote.
(3) The revised text of the convention comes into force after the deposit of instruments of ratification or accession of a number of Contracting States determined by the conference and the date it has fixed.
(4) States that, on the date of entry into force of the revised Convention, have not ratified or acceded to it, cease to be parties to this Convention from that date.
Disputes between Contracting States
Article 173
(1) Any dispute between Contracting States concerning the interpretation or application of this Convention and has not been settled by negotiation shall, at the request of one of the States in question, be submitted to the Governing Council which shall endeavour to involve an agreement between the said States.
(2) If such an agreement has not been reached within six months of the date on which the Board of Directors has been seized of the dispute, any of the States in question may bring the dispute to the International Court of Justice for a decision binding the parties in question.
Denunciation
Rule 174
Any Contracting State may at any time denounce this Convention. The denunciation is notified to the Government of the Federal Republic of Germany. It shall take effect upon the expiry of the period of one year from the date of receipt of that notification.
Reservation of acquired rights
Rule 175
(1) Where a State ceases to be a party to the Convention under Article 172, paragraph 4, or Article 174, it is not infringed on the rights previously acquired under this Convention.
(2) The European patent applications pending on the date on which a designated State ceases to be a party to the Convention continue to be instructed by the European Patent Office, with respect to that State, as if the Convention, as it is in force after that date, was applicable to it.
(3) The provisions of paragraph 2 shall apply to European patents in respect of which, on the date mentioned in the paragraph, an opposition is pending or the opposition period has not expired.
(4) This article does not affect the right of a State that has ceased to be a party to this Convention to apply to European patents the provisions of the text of the convention to which it was a party.
Financial rights and obligations of a Contracting State that has ceased to be a party to the Convention
Rule 176
(1) Any State that has ceased to be a party to this Agreement pursuant to section 172, paragraph 4, or section 174, shall not be reimbursed by the Organization for the exceptional financial contributions it has made under section 40, paragraph 2, except on the date and under the conditions in which the Organization reimburses the exceptional financial contributions paid to it by other States during the same fiscal year.
(2) The sums of which the amount corresponds to the percentage of taxes collected for the maintenance in force of European patents in the State referred to in paragraph 1^er, as defined in Article 39, are due by that State, even though it has ceased to be a party to this Convention; the amount of these amounts is the amount to be paid by the State in question on the date on which it ceased to be a party to this Convention.
Languages of the Convention
Article 177
(1) This Agreement shall be in a copy in German, English and French, which shall be deposited in the archives of the Government of the Federal Republic of Germany, the three texts being equally authentic.
(2) The texts of this Convention established in the official languages of the Contracting States other than those referred to in paragraph 1^er and approved by the Board of Directors are considered as official texts. In case of dispute over the interpretation of the various texts, the texts referred to in paragraph 1^er Trust me.
Communications and notifications
Article 178
(1) The Government of the Federal Republic of Germany shall prepare certified copies of this Agreement and shall transmit them to the governments of all signatories or members.
(2) The Government of the Federal Republic of Germany shall notify the governments of the States referred to in paragraph 1^er :
(a) the deposit of any instrument of ratification or accession;
(b) any declaration or notification received under section 168;
(c) any denunciation received under section 174 and the date on which the denunciation takes effect.
(3) The Government of the Federal Republic of Germany shall register this Agreement with the Secretariat of the United Nations.