Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Vu la Act No. 2007-1475 of 17 October 2007 authorizing the ratification of the Revision of the Convention on the Grant of European Patents;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France;
Vu le Decree No. 77-1151 of 27 September 1977 publishing the Convention on the Grant of European Patents of 5 October 1973,
Decrete:
The Act revising the Convention on the Grant of European Patents, made in Munich on 29 November 2000, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
A C T E
REVISION OF THE CONVENTION
SUR LA DÉLIVRANCE DE BREVETS EUROPÉENS
PREAMBULE
THE STATES PARTIES TO THE CONVENTION ON EUROPEAN BREVET,
CONSIDERING that 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,
REQUESTS to ensure 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,
WHEREAS to adapt, in the light of the increasing internationalization in patents, the European Patent Convention to the technical and legal evolution that has taken place since its adoption,
CONVENTS OF SUVISIONS:
ARTICLE 1
MODIFICATION OF THE CONVENTION ON EUROPEAN BREVET
The European Patent Convention is amended to read:
1. The following new article 4 bis is inserted after article 4:
Article 4 bis
Conference of Ministers of Contracting States
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:
Article 11
Appointment of senior staff
(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:
Article 14
Languages of the European Patent Office,
European patent applications and other documents
(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:
Article 16
Deposit Section
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:
Article 17
Research Divisions
Research divisions are competent to prepare European research reports.
6. Section 18 is replaced by the following text:
Article 18
Examining divisions
(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:
Article 21
Boards of Appeal
(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 an opposition division composed of three members;
(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:
Article 22
Enlarged Board of Appeal
(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 112 bis.
(2) In the procedures set out in paragraph 1, 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:
Article 23
Independence of room members
(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:
Rule 33
Competence of the Board of Directors in certain cases
(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) Financial regulations;
(b) the status of civil servants and the regime applicable to the other officers of the European Patent Office, the scale of their remuneration, and the nature and rules of granting of miscellaneous 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 (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 a time limit for its transfer, before the expiry of that period.
11. Section 35 is replaced by the following text:
Rule 35
Votes
(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 make under Article 7, Article 11, paragraph 1, Article 33, paragraphs 1, letters (a) and (c), and 2 to 4, Article 39, paragraph 1, Article 40, paragraphs 2 and 4, of Article 46, Article 134 bis, of Article 149
(3) Requires the unanimity of the Contracting States voting on the decisions that the Governing Council is competent to take under Article 33, paragraph 1, letter (b). The Governing Council shall take such decisions only if all Contracting States are represented. A decision under Article 33, paragraph 1, letter (b), shall not take effect if a Contracting State declares, within twelve months from 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:
Rule 37
Financing of the budget
The Organization's budget is funded:
(a) by the Organization's own resources;
(b) by the payments of the Contracting States under the current European patent retention taxes collected in those States;
(c) possibly by exceptional financial contributions from the Contracting States;
(d) where appropriate, by the revenues provided for in Article 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:
Rule 38
Organization's own resources
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 the pension plan by establishing appropriate reserves.
14. Section 42 is replaced by the following text:
Rule 42
Budget
(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:
Rule 50
Financial regulations
The financial regulations include:
(a) the terms and conditions for the establishment and execution of the budget, as well as 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 articles 39, 40 and 47;
(e) the modalities for calculating contributions to be paid under Article 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:
Rule 51
Taxes
(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:
Rule 52
Patentable inventions
(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 shall include:
(a) discoveries and scientific theories and mathematical methods;
(b) aesthetic creations;
(c) plans, principles and methods in the exercise of intellectual activities, in the field of play or in the field of 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:
Rule 53
Exceptions to patentability
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 only 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 surgical or therapeutic treatment methods 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:
Rule 54
New
(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 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:
Rule 60
Right to European patent
(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 main 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:
Rule 61
European patent application
filed by a non-authorized person
(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:
Rule 65
European patent translation
(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:
Rule 67
Rights conferred by the European patent application
after publication
(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 and 2 is provided 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 has 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 referred to in paragraphs 1 and 2 shall be deemed 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 as a result 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:
Rule 68
Effects of revocation
or limitation of the European patent
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:
Rule 69
Scope of protection
(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:
Rule 70
Text of European patent application
or the European patent acting in faith
(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:
Rule 75
Filing of European patent application
(1) The European patent application may be filed:
(a) either with the European Patent Office;
(b) if the law of a Contracting State permits, and subject to the provisions of Article 76, paragraph 1, to the central office of industrial property or other competent services of that State. Any such application has the same effect as if it had been filed on the same date at the European Patent Office.
(2) Paragraph 1 shall not preclude the application of 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:
Rule 76
European divisional applications
(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 it is satisfied with this requirement, 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:
Rule 77
Transmission of European patent applications
(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:
Rule 78
Conditions to be met
European patent
(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:
Rule 79
Designation of Contracting States
(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:
Rule 80
Deposit date
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:
Rule 86
Annual fees for European patent application
(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:
Rule 87
Right of priority
(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 by the Agreement establishing the World Trade Organization, paragraphs 1 to 4 apply if, following a communication from the President of the European Patent Office, that service recognizes that a first deposit made with the European Patent Office gives rise to a priority right submitted to the Paris Conventions.
35. Section 88 is replaced by the following text:
Rule 88
Prioritization
(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:
Rule 90
Review at filing and as to form requirements
(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 paragraph 1 has been completed, 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, Articles 88, paragraph 1, 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 or 3, the existence of irregularities to which it can be corrected, 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:
Rule 92
Establishment of the European research report
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:
Rule 93
Publication of European patent application
(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 (a).
40. Section 94 is replaced by the following text:
Rule 94
Examination of European patent application
(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 conditions set out in this Agreement, the Examining Division invites the applicant, as often as necessary, to submit its observations and, subject to the provisions of section 123, paragraph 1, 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:
Rule 97
Patent issue or rejection of application
(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:
Rule 98
Publication of the European patent fascicle
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 II
PROCEDURE FOR PROPOSAL
AND LIMITATION
45. Section 99 is replaced by the following text:
Rule 99
Opposition
(1) Within nine months of the publication of the mention of the grant of the European patent in the European Patent Bulletin, any person may 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:
Rule 101
Consideration of the opposition. ―
Revocation or maintenance of the European patent
(1) If the opposition is admissible, the Opposition Division shall examine in accordance with the Implementing Regulations 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 invention which is the subject of the patent:
(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:
Rule 103
Publication of a new fascicle of the European patent
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:
Rule 104
Fees
(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:
Rule 105
Intervention by the alleged offender
(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 105 bis, 105 ter and 105 quater are inserted following section 105:
Article 105 bis
Application for limitation or revocation
(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.
Article 105 ter
Limitation or revocation of the European patent
(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.
Article 105 quater
Publication of a modified European patent fascicle
When the European patent has been limited under Article 105 ter, paragraph 2, the European Patent Office shall publish the amended European Patent Paper as soon as possible after the mention of the limitation to the European Patent Bulletin.
52. Section 106 is replaced by the following text:
Rule 106
Decisions that may be appealed
(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:
Rule 108
Time and form
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:
Rule 110
Review of appeal
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 112 bis is inserted after section 112:
Article 112 bis
Request for review by the Enlarged Board of Appeal
(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, or despite his exclusion pursuant to a decision under article 24, paragraph 4;
(b) a person who is not a member of the boards of appeal participated in the decision;
(c) the appeal procedure was 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 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, pursue such an operation.
56. Section 115 is replaced by the following text:
Rule 115
Comments by third parties
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:
Article 117
Evidence and instruction
(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) the 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:
Rule 119
Meaning
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:
Rule 120
Time limits
The Implementing Regulations determine:
(a) the deadlines that must be observed in proceedings before the European Patent Office and which are not set by 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:
Rule 121
Continuation of the European patent application procedure
(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, 108 and 112 bis, paragraph 4, as well as the time limits for the submission of the request for further proceedings and the request for re-establishment are excluded. Implementing regulations may exclude further delays in the prosecution of proceedings.
61. Section 122 is replaced by the following text:
Article 122
Restitutio in integrum
(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 requirements of paragraph 1 and the requirements of 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) 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 and the publication of the mention of the restoration of that right, 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 measure, pursue such exploitation in his or her enterprise or for the needs of his or her business.
(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:
Article 123
Amendments
(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:
Rule 124
Information on the state of the technique
(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 limit, the applicant does not submit the invitation referred to in paragraph 1, the European patent application is deemed to be withdrawn.
64. Section 126 is deleted.
65. Section 127 is replaced by the following text:
Article 127
European Patent Register
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:
Rule 128
Public inspection
(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) When a divisional application or a new European patent application filed under Article 61, paragraph 1, is published, a person may consult the original application file prior to the publication of that 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:
Rule 129
Recurrent
The European Patent Office publishes periodically:
(a) a European Patent Bulletin containing the information prescribed by this Convention, 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:
Rule 130
Exchange of information
(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 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) Communications of information made pursuant to paragraph 1 and paragraph 2, letters (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 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:
Article 133
General principles of representation
(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) Physical 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:
Rule 134
Representation before the European Patent Office
(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 on the list referred to in paragraph 1 shall be 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 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 referred to in paragraph 2, letter (a), or paragraph 3, letter (a), in cases with a particular situation;
(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 134 bis is inserted after section 134:
Article 134 bis
Institute of Chartered Agents
near the European Patent Office
(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 of this 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, is a member of the Institute.
72. Section 135 is replaced by the following text:
Rule 135
Application for national procedure
(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, letter (a), the application must be submitted to the national central industrial property service where 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, 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:
Rule 137
Formal conditions of transformation
(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:
Article 138
Nullity of European patents
(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 in accordance with Article 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.
(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:
Rule 140
National utility models and certificates
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:
Article 141
Annual European patent taxes
(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 149 bis is inserted after section 149:
Article 149 bis
Other agreements between Contracting States
(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) the 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 the 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 IX
INTERNATIONAL REQUESTS FOR SENSUS OF COOPERATION IN 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.
Article 151
The European Patent Office, receiving office
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.
Rule 152
The European Patent Office, International Research Administration or International Preliminary Examination Administration
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.
Rule 153
The European Patent Office,
designated office or elected office
(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 assigned 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 section 67, paragraph 3, the provisional protection referred to in section 67, paragraphs 1 and 2, shall be provided only from the date of 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 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:
Article 164
Implementing Regulations and Protocols
(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.
ARTICLE 2
PROTOCOLES
1. The interpretative protocol of Article 69 EPC is replaced by the following text:
PROTOCOL
DE L'ARTICLE 69 EPC
Article 1
General principles
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.
Article 2
Equivalent
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 THE EFFECTIVES OF THE EUROPEAN OFFICE OF HAY BREVETS (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 Hague Department resulting in a gap of more than 10% compared to that 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 of the centralization protocol is replaced by the following:
PROTOCOL ON CENTRALIZATION AND INTRODUCTION OF THE EUROPEAN SYSTEM OF BREVETS (PROTOCOLE ON CENTRALIZATION)
(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, paragraph 1. 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 the agreement is implemented by the date referred to in Article 162, paragraph 1, 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 terminate 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 this agreement is implemented, the European Patent Office shall, 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 agreement, 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 will have 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, as of the date referred to in Article 162, paragraph 1, 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, 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 in the creation and operation of the Berlin agency for the European Patent Organisation.
ARTICLE 3
NEW TEXT OF THE CONVENTION
(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.
ARTICLE 4
SIGNATURE AND RATIFICATION
(1) This review is open until 1 September 2001 for signature by the Contracting States to the European Patent Office in Munich.
(2) This review is subject to ratification; instruments of ratification shall be deposited with the Government of the Federal Republic of Germany.
ARTICLE 5
ADHÉSION
(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.
ARTICLE 6
IMPLEMENTATION
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.
ARTICLE 7
TRANSITIONAL PROVISIONS
(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 Board of Directors of the European Patent Organisation shall make a decision in accordance with paragraph 1 on 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.
ARTICLE 8
STRENGTHEN
(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.
ARTICLE 9
TRANSMISSIONS AND NOTIFICATIONS
(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.
(2) The Government of the Federal Republic of Germany shall notify the Governments of the States referred to in paragraph 1:
(a) the deposit of any instrument of ratification or accession;
(b) the effective date of this review act.
IN WITNESS WHEREOF 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 deposited in the archives of the Government of the Federal Republic of Germany.
Done in Paris on 2 May 2008.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister for Foreign Affairs
and European,
Bernard Kouchner
