Convention on the Grant of European Patents
(European Patent Convention)
of 5 October 1973
as revised by the Act revising Article 63 EPC of 17 December 1991 and the Act revising the EPC of 29 November 20001
PART I
GENERAL AND INSTITUTIONAL PROVISIONS
Chapter I
General provisions
Article 1
European law for the grant of patents
A system of law, common to the Contracting States, 2 for the grant of pa- tents for invention is established by this Convention.
Article 2
European patent
(1) Patents granted under this Convention shall be called European pa- tents.
(2) The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides oth- erwise.
Article 3
Territorial effect
The grant of a European patent may be requested for one or more of the Contracting States.
Article 4
European Patent Organisation
(1) A European Patent Organisation, hereinafter referred to as the Organi- sation, is established by this Convention. It shall have administrative and fi- nancial autonomy.
(2) The organs of the Organisation shall be:
(a) the European Patent Office;
(b) the Administrative Council.
(3) The task of the Organisation shall be to grant European patents. This shall be carried out by the European Patent Office supervised by the Ad- ministrative Council.
Article 4a
Conference of ministers of the Contracting States
A conference of ministers of the Contracting States responsible for patent matters shall meet at least every five years to discuss issues pertaining to the Organisation and to the European patent system.
Chapter II
The European Patent Organisation
Article 5
Legal status
(1) The Organisation shall have legal personality.
(2) In each of the Contracting States, the Organisation shall enjoy the most extensive legal capacity accorded to legal persons under the national law of that State; it may in particular acquire or dispose of movable and immovable property and may be a party to legal proceedings.
(3) The President of the European Patent Office shall represent the Organisation.
Article 6
Headquarters
(1) The Organisation shall have its headquarters in Munich.
(2) The European Patent Office shall be located in Munich. It shall have a branch at The Hague.
Article 7
Sub-offices of the European Patent Office
By decision of the Administrative Council, sub-offices of the European Patent Office may be created, if need be, for the purpose of information and liaison, in the Contracting States and with intergovernmental organisations in the field of industrial property, subject to the approval of the Contracting State or organisation concerned.
Article 8
Privileges and immunities
The Protocol on Privileges and Immunities annexed to this Convention shall define the conditions under which the Organisation, the members of the Administrative Council, the employees of the European Patent Office, and such other persons specified in that Protocol as take part in the work of the Organisation, shall enjoy, in each Contracting State, the privileges and im- munities necessary for the performance of their duties.
Article 9
Liability
(1) The contractual liability of the Organisation shall be governed by the law applicable to the contract in question.
(2) The non-contractual liability of the Organisation in respect of any damage caused by it or by the employees of the European Patent Office in the performance of their duties shall be governed by the law of the Federal Republic of Germany. Where the damage is caused by the branch at The Hague or a sub-office or employees attached thereto, the law of the Contracting State in which such branch or sub-office is located shall apply.
(3) The personal liability of the employees of the European Patent Office towards the Organisation shall be governed by their Service Regulations or conditions of employment.
(4) The courts with jurisdiction to settle disputes under paragraphs 1 and 2 shall be:
(a) for disputes under paragraph 1, the courts of the Federal Republic of Germany, unless the contract concluded between the parties designates a court of another State;
(b) for disputes under paragraph 2, the courts of the Federal Republic of Germany, or of the State in which the branch or sub-office is located.
Chapter III
The European Patent Office
Article 10
Management
(1) The European Patent Office shall be managed by the President, who shall be responsible for its activities to the Administrative Council.
(2) To this end, the President shall have in particular the following func- tions and powers:
(a) he shall take all necessary steps to ensure the functioning of the European Patent Office, including the adoption of internal administrative instructions and information to the public;
(b) unless this Convention provides otherwise, he shall prescribe which acts are to be performed at the European Patent Office in Munich and its branch at The Hague respectively;
(c) he may submit to the Administrative Council any proposal for amending this Convention, for general regulations, or for decisions which come within the competence of the Administrative Council;
(d) he shall prepare and implement the budget and any amending or sup- plementary budget;
(e) he shall submit a management report to the Administrative Council each year;
(f) he shall exercise supervisory authority over the staff;
(g) subject to Article 11, he shall appoint the employees and decide on their promotion;
(h) he shall exercise disciplinary authority over the employees other than those referred to in Article 11, and may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11, paragraphs 2 and 3;
(i) he may delegate his functions and powers.
(3) The President shall be assisted by a number of Vice-Presidents. If the President is absent or indisposed, one of the Vice-Presidents shall take his place in accordance with the procedure laid down by the Administrative Council.
Article 11
Appointment of senior employees
(1) The President of the European Patent Office shall be appointed by the Administrative Council.
(2) The Vice-Presidents shall be appointed by the Administrative Council after the President of the European Patent Office has been consulted.
(3) The members, including the Chairmen, of the Boards of Appeal and of the Enlarged Board of Appeal shall be appointed by the Administrative Council on a proposal from the President of the European Patent Office. They may be re-appointed by the Administrative Council after the President of the European Patent Office has been consulted.
(4) The Administrative Council shall exercise disciplinary authority over the employees referred to in paragraphs 1 to 3.
(5) The Administrative Council, after consulting the President of the Euro- pean Patent Office, may also appoint as members of the Enlarged Board of Appeal legally qualified members of the national courts or quasi-judicial au- thorities of the Contracting States, who may continue their judicial activities at the national level. They shall be appointed for a term of three years and may be re-appointed.
Article 12
Duties of office
Employees of the European Patent Office shall be bound, even after the termination of their employment, neither to disclose nor to make use of in- formation which by its nature is a professional secret.
Article 13
Disputes between the Organisation and the employees of the European Patent Office
(1) Employees and former employees of the European Patent Office or their successors in title may apply to the Administrative Tribunal of the In- ternational Labour Organization in the case of disputes with the European Patent Organisation, in accordance with the Statute of the Tribunal and within the limits and subject to the conditions laid down in the Service Regulations for permanent employees or the Pension Scheme Regulations or arising from the conditions of employment of other employees.
(2) An appeal shall only be admissible if the person concerned has ex- hausted such other means of appeal as are available to him under the Ser- vice Regulations, the Pension Scheme Regulations or the conditions of employment.
Article 14
Languages of the European Patent Office, European patent applications and other documents
(1) The official languages of the European Patent Office shall be English, French and German.
(2) A European patent application shall be filed in one of the official lan- guages or, if filed in any other language, translated into one of the official languages in accordance with the Implementing Regulations. Throughout the proceedings before the European Patent Office, such translation may be brought into conformity with the application as filed. If a required transla- tion is not filed in due time, the application shall be deemed to be with- drawn.
(3) The official language of the European Patent Office in which the European patent application is filed or into which it is translated shall be used as the language of the proceedings in all proceedings before the European Patent Office, unless the Implementing Regulations provide otherwise.
(4) Natural or legal persons having their residence or principal place of business within a Contracting State having a language other than English, French or German as an official language, and nationals of that State who are resident abroad, may file documents which have to be filed within a time limit in an official language of that State. They shall, however, file a translation in an official language of the European Patent Office in accordance with the Implementing Regulations. If any document, other than those documents making up the European patent application, is not filed in the prescribed language, or if any required translation is not filed in due time, the document shall be deemed not to have been filed.
(5) European patent applications shall be published in the language of the proceedings.
(6) Specifications of European patents shall be published in the language of the proceedings and shall include a translation of the claims in the other two official languages of the European Patent Office.
(7) The following shall be published in the three official languages of the European Patent Office:
(a) the European Patent Bulletin;
(b) the Official Journal of the European Patent Office.
(8) Entries in the European Patent Register shall be made in the three offi- cial languages of the European Patent Office. In cases of doubt, the entry in the language of the proceedings shall be authentic.
Article 15
Departments entrusted with the procedure
To carry out the procedures laid down in this Convention, the following shall be set up within the European Patent Office:
(a) a Receiving Section;
(b) Search Divisions;
(c) Examining Divisions;
(d) Opposition Divisions;
(e) a Legal Division;
(f) Boards of Appeal;
(g) an Enlarged Board of Appeal.
Article 16
Receiving Section
The Receiving Section shall be responsible for the examination on filing and the examination as to formal requirements of European patent applica- tions.
Article 17
Search Divisions
The Search Divisions shall be responsible for drawing up European search reports.
Article 18
Examining Divisions
(1) The Examining Divisions shall be responsible for the examination of European patent applications.
(2) An Examining Division shall consist of three technically qualified examiners. However, before a decision is taken on a European patent application, its examination shall, as a general rule, be entrusted to one member of the Examining Division. Oral proceedings shall be before the Examining Division itself. If the Examining Division considers that the nature of the decision so requires, it shall be enlarged by the addition of a legally qualified examiner. In the event of parity of votes, the vote of the Chairman of the Examining Division shall be decisive.
Article 19
Opposition Divisions
(1) The Opposition Divisions shall be responsible for the examination of oppositions against any European patent.
(2) An Opposition Division shall consist of three technically qualified examiners, at least two of whom shall not have taken part in the proceedings for grant of the patent to which the opposition relates. An examiner who has taken part in the proceedings for the grant of the European patent may not be the Chairman. Before a decision is taken on the opposition, the Opposition Division may entrust the examination of the opposition to one of its members. Oral proceedings shall be before the Opposition Division itself. If the Opposition Division considers that the nature of the decision so requires, it shall be enlarged by the addition of a legally qualified examiner who shall not have taken part in the proceedings for grant of the patent. In the event of parity of votes, the vote of the Chairman of the Opposition Division shall be decisive.
Article 20
Legal Division
(1) The Legal Division shall be responsible for decisions in respect of en- tries in the Register of European Patents and in respect of registration on, and deletion from, the list of professional representatives.
(2) Decisions of the Legal Division shall be taken by one legally qualified member.
Article 21
Boards of Appeal
(1) The Boards of Appeal shall be responsible for the examination of appeals from decisions of the Receiving Section, the Examining Divisions and Opposition Divisions, and the Legal Division.
(2) For appeals from decisions of the Receiving Section or the Legal Divi- sion, a Board of Appeal shall consist of three legally qualified members.
(3) For appeals from a decision of an Examining Division, a Board of Ap- peal shall consist of:
(a) two technically qualified members and one legally qualified member, when the decision concerns the refusal of a European patent application or the grant, limitation or revocation of a European patent, and was taken by an Examining Division consisting of less than four members;
(b) three technically and two legally qualified members, when the decision was taken by an Examining Division consisting of four members, or when the Board of Appeal considers that the nature of the appeal so requires;
(c) three legally qualified members in all other cases.
(4) For appeals from a decision of an Opposition Division, a Board of Ap- peal shall consist of:
(a) two technically qualified members and one legally qualified member, when the decision was taken by an Opposition Division consisting of three members;
(b) three technically and two legally qualified members, when the decision was taken by an Opposition Division consisting of four members, or when the Board of Appeal considers that the nature of the appeal so requires.
Article 22
Enlarged Board of Appeal
(1) The Enlarged Board of Appeal shall be responsible for:
(a) deciding on points of law referred to it by Boards of Appeal under Arti- cle 112;
(b) giving opinions on points of law referred to it by the President of the European Patent Office under Article 112;
(c) deciding on petitions for review of decisions of the Boards of Appeal under Article 112a.
(2) In proceedings under paragraph 1(a) and (b), the Enlarged Board of Appeal shall consist of five legally and two technically qualified members. In proceedings under paragraph 1(c), the Enlarged Board of Appeal shall consist of three or five members as laid down in the Implementing Regulations. In all proceedings, a legally qualified member shall be the Chairman.
Article 23
Independence of the members of the Boards
(1) The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect. Notwithstanding sen- tence 1, the term of office of members of the Boards shall end if they resign or are retired in accordance with the Service Regulations for permanent employees of the European Patent Office.
(2) The members of the Boards may not be members of the Receiving Section, Examining Divisions, Opposition Divisions or Legal Division.
(3) In their decisions the members of the Boards shall not be bound by any instructions and shall comply only with the provisions of this Convention.
(4) The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be adopted in accordance with the Implementing Regulations. They shall be subject to the approval of the Administrative Council.
Article 24
Exclusion and objection
(1) Members of the Boards of Appeal or of the Enlarged Board of Appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal.
(2) If, for one of the reasons mentioned in paragraph 1, or for any other reason, a member of a Board of Appeal or of the Enlarged Board of Appeal
considers that he should not take part in any appeal, he shall inform the Board accordingly.
(3) Members of a Board of Appeal or of the Enlarged Board of Appeal may be objected to by any party for one of the reasons mentioned in para- graph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a proce- dural step. An objection may not be based upon the nationality of members.
(4) The Boards of Appeal and the Enlarged Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3, without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate.
Article 25
Technical opinion
At the request of the competent national court hearing an infringement or revocation action, the European Patent Office shall be obliged, on payment of an appropriate fee, to give a technical opinion concerning the Europe- an patent which is the subject of the action. The Examining Division shall be responsible for issuing such opinions.
Chapter IV
The Administrative Council
Article 26
Membership
(1) The Administrative Council shall be composed of the Representatives and the alternate Representatives of the Contracting States. Each Contracting State shall be entitled to appoint one Representative and one alternate Representative to the Administrative Council.
(2) The members of the Administrative Council may, in accordance with the Rules of Procedure of the Administrative Council, be assisted by advisers or experts.
Article 27
Chairmanship
(1) The Administrative Council shall elect a Chairman and a Deputy Chairman from among the Representatives and alternate Representatives of the Contracting States. The Deputy Chairman shall ex officio replace the Chairman if he is prevented from carrying out his duties.
(2) The terms of office of the Chairman and the Deputy Chairman shall be three years. They may be re-elected.
Article 28
Board
(1) When there are at least eight Contracting States, the Administrative Council may set up a Board composed of five of its members.
(2) The Chairman and the Deputy Chairman of the Administrative Council shall be members of the Board ex officio; the other three members shall be elected by the Administrative Council.
(3) The term of office of the members elected by the Administrative Coun- cil shall be three years. They may not be re-elected.
(4) The Board shall perform the duties assigned to it by the Administrative Council in accordance with the Rules of Procedure.
Article 29
Meetings
(1) Meetings of the Administrative Council shall be convened by its Chair- man.
(2) The President of the European Patent Office shall take part in the deliberations of the Administrative Council.
(3) The Administrative Council shall hold an ordinary meeting once each year. In addition, it shall meet on the initiative of its Chairman or at the re- quest of one-third of the Contracting States.
(4) The deliberations of the Administrative Council shall be based on an agenda, and shall be held in accordance with its Rules of Procedure.
(5) The provisional agenda shall contain any question whose inclusion is requested by any Contracting State in accordance with the Rules of Proce- dure.
Article 30
Attendance of observers
(1) The World Intellectual Property Organization shall be represented at the meetings of the Administrative Council, in accordance with an agree- ment between the Organisation and the World Intellectual Property Organi- zation.
(2) Other intergovernmental organisations entrusted with carrying out international procedures in the field of patents, with which the Organisation has concluded an agreement, shall be represented at the meetings of the Administrative Council, in accordance with such agreement.
(3) Any other intergovernmental and international non-governmental or- ganisations carrying out an activity of interest to the Organisation may be
invited by the Administrative Council to be represented at its meetings during any discussion of matters of mutual interest.
Article 31
Languages of the Administrative Council
(1) The languages used in the deliberations of the Administrative Council
shall be English, French and German.
(2) Documents submitted to the Administrative Council, and the minutes of
its deliberations, shall be drawn up in the three languages specified in paragraph 1.
Article 32
Staff, premises and equipment
The European Patent Office shall place at the disposal of the Administrative
Council, and of any committee established by it, such staff, premises and
equipment as may be necessary for the performance of their duties.
Article 33
Competence of the Administrative Council in certain cases
(1) The Administrative Council shall be competent to amend:
(a) the time limits laid down in this Convention;
(b) Parts II to VIII and Part X of this Convention, to bring them into line with
an international treaty relating to patents or European Community legislation relating to patents;
(c) the Implementing Regulations.
(2) The Administrative Council shall be competent, in conformity with this
Convention, to adopt or amend:
(a) the Financial Regulations;
(b) the Service Regulations for permanent employees and the conditions
of employment of other employees of the European Patent Office, the salary scales of the said permanent and other employees, and also the nature
of any supplementary benefits and the rules for granting them;
(c) the Pension Scheme Regulations and any appropriate increases in existing pensions to correspond to increases in salaries;
(d) the Rules relating to Fees;
(e) its Rules of Procedure.
(3) Notwithstanding Article 18, paragraph 2, the Administrative Council shall be competent to decide, in the light of experience, that in certain categories of cases Examining Divisions shall consist of one technically qualified examiner only. Such decision may be rescinded.
(4) The Administrative Council shall be competent to authorise the Presi- dent of the European Patent Office to negotiate and, subject to its approval, to conclude agreements on behalf of the European Patent Organisation with States, with intergovernmental organisations and with documentation centres set up on the basis of agreements with such organisations.
(5) The Administrative Council may not take a decision under para- graph 1(b):
- concerning an international treaty, before its entry into force;
- concerning European Community legislation, before its entry into force or, where that legislation lays down a period for its implementation, before the expiry of that period.
Article 34
Voting rights
(1) The right to vote in the Administrative Council shall be restricted to the Contracting States.
(2) Each Contracting State shall have one vote, except where Article 36 applies.
Article 35
Voting rules
(1) The Administrative Council shall take its decisions, other than those re- ferred to in paragraphs 2 and 3, by a simple majority of the Contracting States represented and voting.
(2) A majority of three-quarters of the votes of the Contracting States represented and voting shall be required for the decisions which the Administrative Council is empowered to take under Article 7, Article 11, paragraph 1, Article 33, paragraphs 1(a) and (c), and 2 to 4, Article 39, paragraph 1, Article 40, paragraphs 2 and 4, Article 46, Article 134a, Arti- cle 149a, paragraph 2, Article 152, Article 153, paragraph 7, Article 166 and Article 172.
(3) Unanimity of the Contracting States voting shall be required for the de- cisions which the Administrative Council is empowered to take under Arti- cle 33, paragraph 1(b). The Administrative Council shall take such deci- sions only if all the Contracting States are represented. A decision taken on the basis of Article 33, paragraph 1(b), shall not take effect if a Contracting State declares, within twelve months of the date of the decision, that it does not wish to be bound by that decision.
(4) Abstentions shall not be considered as votes.
Article 36
Weighting of votes
(1) In respect of the adoption or amendment of the Rules relating to Fees and, if the financial contribution to be made by the Contracting States would thereby be increased, the adoption of the budget of the Organisation and of any amending or supplementary budget, any Contracting State may re- quire, following a first ballot in which each Contracting State shall have one vote, and whatever the result of this ballot, that a second ballot be taken immediately, in which votes shall be given to the States in accordance with paragraph 2. The decision shall be determined by the result of this second ballot.
(2) The number of votes that each Contracting State shall have in the sec- ond ballot shall be calculated as follows:
(a) the percentage obtained for each Contracting State in respect of the scale for the special financial contributions, pursuant to Article 40, para- graphs 3 and 4, shall be multiplied by the number of Contracting States and divided by five;
(b) the number of votes thus given shall be rounded upwards to the next whole number;
(c) five additional votes shall be added to this number;
(d) nevertheless, no Contracting State shall have more than 30 votes.
Chapter V
Financial provisions
Article 37
Budgetary funding
The budget of the Organisation shall be financed:
(a) by the Organisation's own resources;
(b) by payments made by the Contracting States in respect of renewal fees for European patents levied in these States;
(c) where necessary, by special financial contributions made by the Con- tracting States;
(d) where appropriate, by the revenue provided for in Article 146;
(e) where appropriate, and for tangible assets only, by third-party borrowings secured on land or buildings;
(f) where appropriate, by third-party funding for specific projects.
Article 38
The Organisation's own resources
The Organisation's own resources shall comprise:
(a) all income from fees and other sources and also the reserves of the Organisation;
(b) the resources of the Pension Reserve Fund, which shall be treated as a special class of asset of the Organisation, designed to support the Organ- isation's pension scheme by providing the appropriate reserves.
Article 39
Payments by the Contracting States in respect of renewal fees for European patents
(1) Each Contracting State shall pay to the Organisation in respect of each renewal fee received for a European patent in that State an amount equal to a proportion of that fee, to be fixed by the Administrative Council; the proportion shall not exceed 75% and shall be the same for all Contracting States. However, if the said proportion corresponds to an amount which is less than a uniform minimum amount fixed by the Administrative Council, the Contracting State shall pay that minimum to the Organisation.
(2) Each Contracting State shall communicate to the Organisation such in- formation as the Administrative Council considers to be necessary to de- termine the amount of these payments.
(3) The due dates for these payments shall be determined by the Adminis- trative Council.
(4) If a payment is not remitted fully by the due date, the Contracting State shall pay interest from the due date on the amount remaining unpaid.
Article 40
Level of fees and payments - Special financial contributions
(1) The amounts of the fees referred to in Article 38 and the proportion referred to in Article 39 shall be fixed at such a level as to ensure that the revenue in respect thereof is sufficient for the budget of the Organisation to be balanced.
(2) However, if the Organisation is unable to balance its budget under the conditions laid down in paragraph 1, the Contracting States shall remit to the Organisation special financial contributions, the amount of which shall be determined by the Administrative Council for the accounting period in question.
(3) These special financial contributions shall be determined in respect of any Contracting State on the basis of the number of patent applications filed in the last year but one prior to that of entry into force of this Convention, and calculated in the following manner:
(a) one half in proportion to the number of patent applications filed in that Contracting State;
(b) one half in proportion to the second highest number of patent applica- tions filed in the other Contracting States by natural or legal persons having their residence or principal place of business in that Contracting State.
However, the amounts to be contributed by States in which the number of patent applications filed exceeds 25 000 shall then be taken as a whole and a new scale drawn up in proportion to the total number of patent applica- tions filed in these States.
(4) Where the scale position of any Contracting State cannot be estab- lished in accordance with paragraph 3, the Administrative Council shall, with the consent of that State, decide its scale position.
(5) Article 39, paragraphs 3 and 4, shall apply mutatis mutandis to the special financial contributions.
(6) The special financial contributions shall be repaid with interest at a rate which shall be the same for all Contracting States. Repayments shall be made in so far as it is possible to provide for this purpose in the budget; the amount thus provided shall be distributed among the Contracting States in accordance with the scale referred to in paragraphs 3 and 4.
(7) The special financial contributions remitted in any accounting period shall be repaid in full before any such contributions or parts thereof remitted in any subsequent accounting period are repaid.
Article 41
Advances
(1) At the request of the President of the European Patent Office, the Contracting States shall grant advances to the Organisation, on account of their payments and contributions, within the limit of the amount fixed by the Administrative Council. The amount of such advances shall be determined in proportion to the amounts due from the Contracting States for the accounting period in question.
(2) Article 39, paragraphs 3 and 4, shall apply mutatis mutandis to the advances.
Article 42
Budget
(1) The budget of the Organisation shall be balanced. It shall be drawn up in accordance with the generally accepted accounting principles laid down in the Financial Regulations. If necessary, there may be amending or sup- plementary budgets.
(2) The budget shall be drawn up in the unit of account fixed in the Finan- cial Regulations.
Article 43
Authorisation for expenditure
(1) The expenditure entered in the budget shall be authorised for the duration of one accounting period, unless the Financial Regulations provide otherwise.
(2) In accordance with the Financial Regulations, any appropriations, other than those relating to staff costs, which are unexpended at the end of the accounting period may be carried forward, but not beyond the end of the following accounting period.
(3) Appropriations shall be set out under different headings according to type and purpose of the expenditure and subdivided, as far as necessary, in accordance with the Financial Regulations.
Article 44
Appropriations for unforeseeable expenditure
(1) The budget of the Organisation may contain appropriations for unfore- seeable expenditure.
(2) The employment of these appropriations by the Organisation shall be subject to the prior approval of the Administrative Council.
Article 45
Accounting period
The accounting period shall commence on 1 January and end on 31 December.
Article 46
Preparation and adoption of the budget
(1) The President of the European Patent Office shall submit the draft budget to the Administrative Council no later than the date prescribed in the Financial Regulations.
(2) The budget and any amending or supplementary budget shall be adopted by the Administrative Council.
Article 47
Provisional budget
(1) If, at the beginning of the accounting period, the budget has not been adopted by the Administrative Council, expenditures may be effected on a monthly basis per heading or other division of the budget, in accordance with the Financial Regulations, up to one-twelfth of the budget appropriations for the preceding accounting period, provided that the appropriations thus made available to the President of the European Patent Office shall not exceed one-twelfth of those provided for in the draft budget.
(2) The Administrative Council may, subject to the observance of the other provisions laid down in paragraph 1, authorise expenditure in excess of one-twelfth of the appropriations.
(3) The payments referred to in Article 37(b) shall continue to be made, on a provisional basis, under the conditions determined under Article 39 for the year preceding that to which the draft budget relates.
(4) The Contracting States shall pay each month, on a provisional basis and in accordance with the scale referred to in Article 40, paragraphs 3 and 4, any special financial contributions necessary to ensure implementation of paragraphs 1 and 2. Article 39, paragraph 4, shall apply mutatis mutandis to these contributions.
Article 48
Budget implementation
(1) The President of the European Patent Office shall implement the budget and any amending or supplementary budget on his own responsibility and within the limits of the allocated appropriations.
(2) Within the budget, the President of the European Patent Office may, in accordance with the Financial Regulations, transfer funds between the var- ious headings or sub-headings.
Article 49
Auditing of accounts
(1) The income and expenditure account and a balance sheet of the Or- ganisation shall be examined by auditors whose independence is beyond doubt, appointed by the Administrative Council for a period of five years, which shall be renewable or extensible.
(2) The audit shall be based on vouchers and shall take place, if necessary, in situ. The audit shall ascertain whether all income has been received and all expenditure effected in a lawful and proper manner and whether the financial management is sound. The auditors shall draw up a report containing a signed audit opinion after the end of each accounting period.
(3) The President of the European Patent Office shall annually submit to the Administrative Council the accounts of the preceding accounting period in respect of the budget and the balance sheet showing the assets and liabilities of the Organisation together with the report of the auditors.
(4) The Administrative Council shall approve the annual accounts together with the report of the auditors and shall discharge the President of the Eu- ropean Patent Office in respect of the implementation of the budget.
Article 50
Financial Regulations
The Financial Regulations shall lay down in particular:
(a) the arrangements relating to the establishment and implementation of the budget and for the rendering and auditing of accounts;
(b) the method and procedure whereby the payments and contributions provided for in Article 37 and the advances provided for in Article 41 are to be made available to the Organisation by the Contracting States;
(c) the rules concerning the responsibilities of authorising and accounting officers and the arrangements for their supervision;
(d) the rates of interest provided for in Articles 39, 40 and 47;
(e) the method of calculating the contributions payable by virtue of Arti- cle 146;
(f) the composition of and duties to be assigned to a Budget and Finance Committee which should be set up by the Administrative Council;
(g) the generally accepted accounting principles on which the budget and the annual financial statements shall be based.
Article 51
Fees
(1) The European Patent Office may levy fees for any official task or pro- cedure carried out under this Convention.
(2) Time limits for the payment of fees other than those fixed by this Con- vention shall be laid down in the Implementing Regulations.
(3) Where the Implementing Regulations provide that a fee shall be paid, they shall also lay down the legal consequences of failure to pay such fee in due time.
(4) The Rules relating to Fees shall determine in particular the amounts of the fees and the ways in which they are to be paid.
PART II
SUBSTANTIVE PATENT LAW
Chapter I
Patentability
Article 52
Patentable inventions
(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
(3) Paragraph 2 shall exclude the patentability of the subject-matter or ac- tivities referred to therein only to the extent to which a European patent ap- plication or European patent relates to such subject-matter or activities as such.
Article 53
Exceptions to patentability
European patents shall not be granted in respect of:
(a) inventions the commercial exploitation of which would be contrary to "ordre public" or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;
(b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof;
(c) methods for treatment of the human or animal body by surgery or ther- apy and diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or composi- tions, for use in any of these methods.
Article 54
Novelty
(1) An invention shall be considered to be new if it does not form part of the state of the art.
(2) The state of the art shall be held to comprise everything made availa- ble to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.
(3) Additionally, the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date, shall be considered as com- prised in the state of the art.
(4) Paragraphs 2 and 3 shall not exclude the patentability of any sub- stance or composition, comprised in the state of the art, for use in a method referred to in Article 53(c), provided that its use for any such method is not comprised in the state of the art.
(5) Paragraphs 2 and 3 shall also not exclude the patentability of any substance or composition referred to in paragraph 4 for any specific use in a method referred to in Article 53(c), provided that such use is not com- prised in the state of the art.
Article 55
Non-prejudicial disclosures
(1) For the application of Article 54, a disclosure of the invention shall not be taken into consideration if it occurred no earlier than six months preceding the filing of the European patent application and if it was due to, or in consequence of:
(a) an evident abuse in relation to the applicant or his legal predecessor, or
(b) the fact that the applicant or his legal predecessor has displayed the invention at an official, or officially recognised, international exhibition falling within the terms of the Convention on international exhibitions signed at Paris on 22 November 1928 and last revised on 30 November 1972.
(2) In the case of paragraph 1(b), paragraph 1 shall apply only if the applicant states, when filing the European patent application, that the invention has been so displayed and files a supporting certificate within the time limit and under the conditions laid down in the Implementing Regulations.
Article 56
Inventive step
An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. If the state of the art also includes documents within the meaning of Article 54, paragraph 3, these documents shall not be considered in deciding whether there has been an inventive step.
Article 57
Industrial application
An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.
Chapter II
Persons entitled to apply for and obtain a European patent - Mention of the inventor
Article 58
Entitlement to file a European patent application
A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it.
Article 59
Multiple applicants
A European patent application may also be filed either by joint applicants or by two or more applicants designating different Contracting States.
Article 60
Right to a European patent
(1) The right to a European patent shall belong to the inventor or his successor in title. If the inventor is an employee, the right to a European patent shall be determined in accordance with the law of the State in which the employee is mainly employed; if the State in which the employee is mainly employed cannot be determined, the law to be applied shall be that of the State in which the employer has the place of business to which the employee is attached.
(2) If two or more persons have made an invention independently of each other, the right to a European patent therefor shall belong to the person whose European patent application has the earliest date of filing, provided that this first application has been published.
(3) In proceedings before the European Patent Office, the applicant shall be deemed to be entitled to exercise the right to a European patent.
Article 61
European patent applications filed by non-entitled persons
(1) If by a final decision it is adjudged that a person other than the appli- cant is entitled to the grant of the European patent, that person may, in ac- cordance with the Implementing Regulations:
(a) prosecute the European patent application as his own application in place of the applicant;
(b) file a new European patent application in respect of the same inven- tion; or
(c) request that the European patent application be refused.
(2) Article 76, paragraph 1, shall apply mutatis mutandis to a new Europe- an patent application filed under paragraph 1(b).
Article 62
Right of the inventor to be mentioned
The inventor shall have the right, vis-à-vis the applicant for or proprietor of a European patent, to be mentioned as such before the European Patent Office.
Chapter III
Effects of the European patent and the European patent application
Article 63
Term of the European patent
(1) The term of the European patent shall be 20 years from the date of fil- ing of the application.
(2) Nothing in the preceding paragraph shall limit the right of a Contracting State to extend the term of a European patent, or to grant corresponding protection which follows immediately on expiry of the term of the patent, under the same conditions as those applying to national patents:
(a) in order to take account of a state of war or similar emergency condi- tions affecting that State;
(b) if the subject-matter of the European patent is a product or a process for manufacturing a product or a use of a product which has to undergo an administrative authorisation procedure required by law before it can be put on the market in that State.
(3) Paragraph 2 shall apply mutatis mutandis to European patents granted jointly for a group of Contracting States in accordance with Article 142.
(4) A Contracting State which makes provision for extension of the term or corresponding protection under paragraph 2(b) may, in accordance with an agreement concluded with the Organisation, entrust to the European Patent Office tasks associated with implementation of the relevant provisions.
Article 64
Rights conferred by a European patent
(1) A European patent shall, subject to the provisions of paragraph 2, con- fer on its proprietor from the date on which the mention of its grant is pub- lished in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.
(2) If the subject-matter of the European patent is a process, the protection conferred by the patent shall extend to the products directly obtained by such process.
(3) Any infringement of a European patent shall be dealt with by national law.
Article 65
Translation of the European patent
(1) Any Contracting State may, if the European patent as granted, amended or limited by the European Patent Office is not drawn up in one of its official languages, prescribe that the proprietor of the patent shall supply to its central industrial property office a translation of the patent as granted, amended or limited in one of its official languages at his option or, where that State has prescribed the use of one specific official language, in that language. The period for supplying the translation shall end three months after the date on which the mention of the grant, maintenance in amended form or limitation of the European patent is published in the European Patent Bulletin, unless the State concerned prescribes a longer period.
(2) Any Contracting State which has adopted provisions pursuant to para- graph 1 may prescribe that the proprietor of the patent must pay all or part of the costs of publication of such translation within a period laid down by that State.
(3) Any Contracting State may prescribe that in the event of failure to ob- serve the provisions adopted in accordance with paragraphs 1 and 2, the European patent shall be deemed to be void ab initio in that State.
Article 66
Equivalence of European filing with national filing
A European patent application which has been accorded a date of filing shall, in the designated Contracting States, be equivalent to a regular na- tional filing, where appropriate with the priority claimed for the European patent application.
Article 67
Rights conferred by a European patent application after publication
(1) A European patent application shall, from the date of its publication, provisionally confer upon the applicant the protection provided for by Arti- cle 64, in the Contracting States designated in the application.
(2) Any Contracting State may prescribe that a European patent applica- tion shall not confer such protection as is conferred by Article 64. However, the protection attached to the publication of the European patent applica- tion may not be less than that which the laws of the State concerned attach to the compulsory publication of unexamined national patent applications. In any event, each State shall ensure at least that, from the date of publica- tion of a European patent application, the applicant can claim compensa- tion reasonable in the circumstances from any person who has used the in- vention in that State in circumstances where that person would be liable under national law for infringement of a national patent.
(3) Any Contracting State which does not have as an official language the language of the proceedings may prescribe that provisional protection in accordance with paragraphs 1 and 2 above shall not be effective until such time as a translation of the claims in one of its official languages at the op- tion of the applicant or, where that State has prescribed the use of one spe- cific official language, in that language:
(a) has been made available to the public in the manner prescribed by na- tional law, or
(b) has been communicated to the person using the invention in the said State.
(4) The European patent application shall be deemed never to have had the effects set out in paragraphs 1 and 2 when it has been withdrawn, deemed to be withdrawn or finally refused. The same shall apply in respect of the effects of the European patent application in a Contracting State the designation of which is withdrawn or deemed to be withdrawn.
Article 68
Effect of revocation or limitation of the European patent
The European patent application and the resulting European patent shall be deemed not to have had, from the outset, the effects specified in Arti- cles 64 and 67, to the extent that the patent has been revoked or limited in opposition, limitation or revocation proceedings.
Article 69
Extent of protection
(1) The extent of the protection conferred by a European patent or a Euro- pean patent application shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims.
(2) For the period up to grant of the European patent, the extent of the protection conferred by the European patent application shall be determined by the claims contained in the application as published. However, the European patent as granted or as amended in opposition, limitation or revocation proceedings shall determine retroactively the protection conferred by the application, in so far as such protection is not thereby extended.
Article 70
Authentic text of a European patent application or European patent
(1) The text of a European patent application or a European patent in the language of the proceedings shall be the authentic text in any proceedings before the European Patent Office and in any Contracting State.
(2) If, however, the European patent application has been filed in a language which is not an official language of the European Patent Office, that text shall be the application as filed within the meaning of this Convention.
(3) Any Contracting State may provide that a translation into one of its official languages, as prescribed by it according to this Convention, shall in that State be regarded as authentic, except for revocation proceedings, in the event of the European patent application or European patent in the language of the translation conferring protection which is narrower than that conferred by it in the language of the proceedings.
(4) Any Contracting State which adopts a provision under paragraph 3:
(a) shall allow the applicant for or proprietor of the patent to file a corrected translation of the European patent application or European patent. Such
corrected translation shall not have any legal effect until any conditions es- tablished by the Contracting State under Article 65, paragraph 2, or Arti- cle 67, paragraph 3, have been complied with;
(b) may prescribe that any person who, in that State, in good faith has used or has made effective and serious preparations for using an invention the use of which would not constitute infringement of the application or pa- tent in the original translation, may, after the corrected translation takes ef- fect, continue such use in the course of his business or for the needs thereof without payment.
Chapter IV
The European patent application as an object of property
Article 71
Transfer and constitution of rights
A European patent application may be transferred or give rise to rights for one or more of the designated Contracting States.
Article 72
Assignment
An assignment of a European patent application shall be made in writing and shall require the signature of the parties to the contract.
Article 73
Contractual licensing
A European patent application may be licensed in whole or in part for the whole or part of the territories of the designated Contracting States.
Article 74
Law applicable
Unless this Convention provides otherwise, the European patent applica- tion as an object of property shall, in each designated Contracting State and with effect for such State, be subject to the law applicable in that State to national patent applications.
PART III
THE EUROPEAN PATENT APPLICATION
Chapter I
Filing and requirements of the European patent application
Article 75
Filing of a European patent application
(1) A European patent application may be filed:
(a) with the European Patent Office, or
(b) if the law of a Contracting State so permits, and subject to Article 76, paragraph 1, with the central industrial property office or other competent authority of that State. Any application filed in this way shall have the same effect as if it had been filed on the same date with the European Patent Office.
(2) Paragraph 1 shall not preclude the application of legislative or regulato- ry provisions which, in any Contracting State:
(a) govern inventions which, owing to the nature of their subject-matter, may not be communicated abroad without the prior authorisation of the competent authorities of that State, or
(b) prescribe that any application is to be filed initially with a national authority, or make direct filing with another authority subject to prior authorisation.
Article 76
European divisional applications
(1) A European divisional application shall be filed directly with the European Patent Office in accordance with the Implementing Regulations. It may be filed only in respect of subject-matter which does not extend beyond the content of the earlier application as filed; in so far as this requirement is complied with, the divisional application shall be deemed to have been filed on the date of filing of the earlier application and shall enjoy any right of priority.
(2) All the Contracting States designated in the earlier application at the time of filing of a European divisional application shall be deemed to be designated in the divisional application.
Article 77
Forwarding of European patent applications
(1) The central industrial property office of a Contracting State shall for- ward to the European Patent Office any European patent application filed with it or any other competent authority in that State, in accordance with the Implementing Regulations.
(2) A European patent application the subject of which has been made se- cret shall not be forwarded to the European Patent Office.
(3) A European patent application not forwarded to the European Patent Office in due time shall be deemed to be withdrawn.
Article 78
Requirements of a European patent application
(1) A European patent application shall contain:
(a) a request for the grant of a European patent;
(b) a description of the invention;
(c) one or more claims;
(d) any drawings referred to in the description or the claims;
(e) an abstract,
and satisfy the requirements laid down in the Implementing Regulations.
(2) A European patent application shall be subject to the payment of the filing fee and the search fee. If the filing fee or the search fee is not paid in due time, the application shall be deemed to be withdrawn.
Article 79
Designation of Contracting States
(1) All the Contracting States party to this Convention at the time of filing of the European patent application shall be deemed to be designated in the request for grant of a European patent.
(2) The designation of a Contracting State may be subject to the payment of a designation fee.
(3) The designation of a Contracting State may be withdrawn at any time up to the grant of the European patent.
Article 80
Date of filing
The date of filing of a European patent application shall be the date on which the requirements laid down in the Implementing Regulations are ful- filled.
Article 81
Designation of the inventor
The European patent application shall designate the inventor. If the applicant is not the inventor or is not the sole inventor, the designation shall contain a statement indicating the origin of the right to the European patent.
Article 82
Unity of invention
The European patent application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept.
Article 83
Disclosure of the invention
The European patent application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.
Article 84
Claims
The claims shall define the matter for which protection is sought. They shall be clear and concise and be supported by the description.
Article 85
Abstract
The abstract shall serve the purpose of technical information only; it may not be taken into account for any other purpose, in particular for interpreting the scope of the protection sought or applying Article 54, paragraph 3.
Article 86
Renewal fees for the European patent application
(1) Renewal fees for the European patent application shall be paid to the European Patent Office in accordance with the Implementing Regulations. These fees shall be due in respect of the third year and each subsequent year, calculated from the date of filing of the application. If a renewal fee is not paid in due time, the application shall be deemed to be withdrawn.
(2) The obligation to pay renewal fees shall terminate with the payment of the renewal fee due in respect of the year in which the mention of the grant of the European patent is published in the European Patent Bulletin.
Chapter II
Priority
Article 87
Priority right
(1) Any person who has duly filed, in or for
(a) any State party to the Paris Convention for the Protection of Industrial Property or
(b) any Member of the World Trade Organization,
an application for a patent, a utility model or a utility certificate, or his suc- cessor in title, shall enjoy, for the purpose of filing a European patent appli- cation in respect of the same invention, a right of priority during a period of twelve months from the date of filing of the first application.
(2) Every filing that is equivalent to a regular national filing under the na- tional law of the State where it was made or under bilateral or multilateral agreements, including this Convention, shall be recognised as giving rise to a right of priority.
(3) A regular national filing shall mean any filing that is sufficient to estab- lish the date on which the application was filed, whatever the outcome of the application may be.
(4) A subsequent application in respect of the same subject-matter as a previous first application and filed in or for the same State shall be consid- ered as the first application for the purposes of determining priority, provid- ed that, at the date of filing the subsequent application, the previous appli- cation has been withdrawn, abandoned or refused, without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right of priority. The previous application may not thereafter serve as a basis for claiming a right of priority.
(5) If the first filing has been made with an industrial property authority which is not subject to the Paris Convention for the Protection of Industrial Property or the Agreement Establishing the World Trade Organization, paragraphs 1 to 4 shall apply if that authority, according to a communication issued by the President of the European Patent Office, recognises that a first filing made with the European Patent Office gives rise to a right of priority under conditions and with effects equivalent to those laid down in the Paris Convention.
Article 88
Claiming priority
(1) An applicant desiring to take advantage of the priority of a previous ap- plication shall file a declaration of priority and any other document required, in accordance with the Implementing Regulations.
(2) Multiple priorities may be claimed in respect of a European patent application, notwithstanding the fact that they originated in different countries. Where appropriate, multiple priorities may be claimed for any one claim. Where multiple priorities are claimed, time limits which run from the date of priority shall run from the earliest date of priority.
(3) If one or more priorities are claimed in respect of a European patent application, the right of priority shall cover only those elements of the European patent application which are included in the application or applications whose priority is claimed.
(4) If certain elements of the invention for which priority is claimed do not appear among the claims formulated in the previous application, priority may nonetheless be granted, provided that the documents of the previous application as a whole specifically disclose such elements.
Article 89
Effect of priority right
The right of priority shall have the effect that the date of priority shall count as the date of filing of the European patent application for the purposes of Article 54, paragraphs 2 and 3, and Article 60, paragraph 2.
PART IV
PROCEDURE UP TO GRANT
Article 90
Examination on filing and examination as to formal requirements
(1) The European Patent Office shall examine, in accordance with the Implementing Regulations, whether the application satisfies the requirements for the accordance of a date of filing.
(2) If a date of filing cannot be accorded following the examination under paragraph 1, the application shall not be dealt with as a European patent application.
(3) If the European patent application has been accorded a date of filing, the European Patent Office shall examine, in accordance with the Implementing Regulations, whether the requirements in Articles 14, 78 and 81, and, where applicable, Article 88, paragraph 1, and Article 133, paragraph 2, as well as any other requirement laid down in the Implementing Regulations, have been satisfied.
(4) Where the European Patent Office in carrying out the examination under paragraphs 1 or 3 notes that there are deficiencies which may be corrected, it shall give the applicant an opportunity to correct them.
(5) If any deficiency noted in the examination under paragraph 3 is not cor- rected, the European patent application shall be refused unless a different legal consequence is provided for by this Convention. Where the deficiency concerns the right of priority, this right shall be lost for the application.
Article 91
(deleted)
Article 92
Drawing up of the European search report
The European Patent Office shall, in accordance with the Implementing Regulations, draw up and publish a European search report in respect of the European patent application on the basis of the claims, with due regard to the description and any drawings.
Article 93
Publication of the European patent application
(1) The European Patent Office shall publish the European patent applica- tion as soon as possible
(a) after the expiry of a period of eighteen months from the date of filing or, if priority has been claimed, from the date of priority, or
(b) at the request of the applicant, before the expiry of that period.
(2) The European patent application shall be published at the same time as the specification of the European patent when the decision to grant the patent becomes effective before the expiry of the period referred to in para- graph 1(a).
Article 94
Examination of the European patent application
(1) The European Patent Office shall, in accordance with the Implementing Regulations, examine on request whether the European patent application and the invention to which it relates meet the requirements of this Conven- tion. The request shall not be deemed to be filed until the examination fee has been paid.
(2) If no request for examination has been made in due time, the applica- tion shall be deemed to be withdrawn.
(3) If the examination reveals that the application or the invention to which it relates does not meet the requirements of this Convention, the Examining Division shall invite the applicant, as often as necessary, to file his observa- tions and, subject to Article 123, paragraph 1, to amend the application.
(4) If the applicant fails to reply in due time to any communication from the Examining Division, the application shall be deemed to be withdrawn.
Article 95
(deleted)
Article 96
(deleted)
Article 97
Grant or refusal
(1) If the Examining Division is of the opinion that the European patent application and the invention to which it relates meet the requirements of this Convention, it shall decide to grant a European patent, provided that the conditions laid down in the Implementing Regulations are fulfilled.
(2) If the Examining Division is of the opinion that the European patent application or the invention to which it relates does not meet the requirements of this Convention, it shall refuse the application unless this Convention provides for a different legal consequence.
(3) The decision to grant a European patent shall take effect on the date on which the mention of the grant is published in the European Patent Bulletin.
Article 98
Publication of the specification of the European patent
The European Patent Office shall publish the specification of the European patent as soon as possible after the mention of the grant of the European patent has been published in the European Patent Bulletin.
PART V
OPPOSITION AND LIMITATION PROCEDURE
Article 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 give no- tice to the European Patent Office of opposition to that patent, in accord- ance with the Implementing Regulations. Notice of opposition shall not be deemed to have been filed until the opposition fee has been paid.
(2) The opposition shall apply to the European patent in all the Contracting States in which that patent has effect.
(3) Opponents shall be parties to the opposition proceedings as well as the proprietor of the patent.
(4) Where a person provides evidence that in a Contracting State, follow- ing a final decision, he has been entered in the patent register of such State instead of the previous proprietor, such person shall, at his request, replace the previous proprietor in respect of such State. Notwithstanding Arti- cle 118, the previous proprietor and the person making the request shall not be regarded as joint proprietors unless both so request.
Article 100
Grounds for opposition
Opposition may only be filed on the grounds that:
(a) the subject-matter of the European patent is not patentable under Arti- cles 52 to 57;
(b) the European patent does not disclose the invention in a manner suffi- ciently clear and complete for it to be carried out by a person skilled in the art;
(c) the subject-matter of the European patent extends beyond the content of the application as filed, or, if the patent was granted on a divisional appli- cation or on a new application filed under Article 61, beyond the content of the earlier application as filed.
Article 101
Examination 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, whether at least one ground for opposition under Article 100 prejudices the maintenance of the European patent. During this examination, the Opposition Division shall invite the parties, as often as necessary, to file observations on communications from another party or issued by itself.
(2) If the Opposition Division is of the opinion that at least one ground for opposition prejudices the maintenance of the European patent, it shall revoke the patent. Otherwise, it shall reject the opposition.
(3) If the Opposition Division is of the opinion that, taking into considera- tion the amendments made by the proprietor of the European patent during the opposition proceedings, the patent and the invention to which it relates
(a) meet the requirements of this Convention, it shall decide to maintain the patent as amended, provided that the conditions laid down in the Implementing Regulations are fulfilled;
(b) do not meet the requirements of this Convention, it shall revoke the pa- tent.
Article 102
(deleted)
Article 103
Publication of a new specification of the European patent
If the European patent is maintained as amended under Article 101, paragraph 3(a), the European Patent Office shall publish a new specification of the European patent as soon as possible after the mention of the opposition decision has been published in the European Patent Bulletin.
Article 104
Costs
(1) Each party to the opposition proceedings shall bear the costs it has incurred, unless the Opposition Division, for reasons of equity, orders, in
accordance with the Implementing Regulations, a different apportionment of costs.
(2) The procedure for fixing costs shall be laid down in the Implementing Regulations.
(3) Any final decision of the European Patent Office fixing the amount of costs shall be dealt with, for the purpose of enforcement in the Contracting States, in the same way as a final decision given by a civil court of the State in which enforcement is to take place. Verification of such decision shall be limited to its authenticity.
Article 105
Intervention of the assumed infringer
(1) Any third party may, in accordance with the Implementing Regulations, intervene in opposition proceedings after the opposition period has expired, if the third party proves that
(a) proceedings for infringement of the same patent have been instituted against him, or
(b) following a request of the proprietor of the patent to cease alleged in- fringement, the third party has instituted proceedings for a ruling that he is not infringing the patent.
(2) An admissible intervention shall be treated as an opposition.
Article 105a
Request for limitation or revocation
(1) At the request of the proprietor, the European patent may be revoked or be limited by an amendment of the claims. The request shall be filed with the European Patent Office in accordance with the Implementing Regula- tions. It shall not be deemed to have been filed until the limitation or revoca- tion fee has been paid.
(2) The request may not be filed while opposition proceedings in respect of the European patent are pending.
Article 105b
Limitation or revocation of the European patent
(1) The European Patent Office shall examine whether the requirements laid down in the Implementing Regulations for limiting or revoking the Euro- pean patent have been met.
(2) If the European Patent Office considers that the request for limitation or revocation of the European patent meets these requirements, it shall decide to limit or revoke the European patent in accordance with the Implementing Regulations. Otherwise, it shall reject the request.
(3) The decision to limit or revoke the European patent shall apply to the European patent in all the Contracting States in respect of which it has been granted. It shall take effect on the date on which the mention of the decision is published in the European Patent Bulletin.
Article 105c
Publication of the amended specification of the European patent
If the European patent is limited under Article 105b, paragraph 2, the European Patent Office shall publish the amended specification of the European patent as soon as possible after the mention of the limitation has been published in the European Patent Bulletin.
PART VI
APPEALS PROCEDURE
Article 106
Decisions subject to appeal
(1) An appeal shall lie from decisions of the Receiving Section, Examining Divisions, Opposition Divisions and the Legal Division. It shall have sus- pensive effect.
(2) A decision which does not terminate proceedings as regards one of the parties can only be appealed together with the final decision, unless the decision allows a separate appeal.
(3) The right to file an appeal against decisions relating to the apportionment or fixing of costs in opposition proceedings may be restricted in the Implementing Regulations.
Article 107
Persons entitled to appeal and to be parties to appeal proceedings
Any party to proceedings adversely affected by a decision may appeal. Any other parties to the proceedings shall be parties to the appeal proceedings as of right.
Article 108
Time limit and form
Notice of appeal shall be filed, in accordance with the Implementing Regulations, at the European Patent Office within two months of notification of the decision. Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid. Within four months of notification of the decision, a statement setting out the grounds of appeal shall be filed in accordance with the Implementing Regulations.
Article 109
Interlocutory revision
(1) If the department whose decision is contested considers the appeal to be admissible and well founded, it shall rectify its decision. This shall not apply where the appellant is opposed by another party to the proceedings.
(2) If the appeal is not allowed within three months of receipt of the state- ment of grounds, it shall be remitted to the Board of Appeal without delay, and without comment as to its merit.
Article 110
Examination of appeals
If the appeal is admissible, the Board of Appeal shall examine whether the appeal is allowable. The examination of the appeal shall be conducted in accordance with the Implementing Regulations.
Article 111
Decision in respect of appeals
(1) Following the examination as to the allowability of the appeal, the Board of Appeal shall decide on the appeal. The Board of Appeal may either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution.
(2) If the Board of Appeal remits the case for further prosecution to the de- partment whose decision was appealed, that department shall be bound by the ratio decidendi of the Board of Appeal, in so far as the facts are the same. If the decision under appeal was taken by the Receiving Section, the Examining Division shall also be bound by the ratio decidendi of the Board of Appeal.
Article 112
Decision or opinion of the Enlarged Board of Appeal
(1) In order to ensure uniform application of the law, or if a point of law of fundamental importance arises:
(a) the Board of Appeal shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes. If the Board of Appeal rejects the request, it shall give the reasons in its final decision;
(b) the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.
(2) In the cases referred to in paragraph 1(a) the parties to the appeal pro- ceedings shall be parties to the proceedings before the Enlarged Board of Appeal.
(3) The decision of the Enlarged Board of Appeal referred to in para- graph 1(a) shall be binding on the Board of Appeal in respect of the appeal in question.
Article 112a
Petition for review by the Enlarged Board of Appeal
(1) Any party to appeal proceedings adversely affected by the decision of the Board of Appeal may file a petition for review of the decision by the Enlarged Board of Appeal.
(2) The petition may only be filed on the grounds that:
(a) a member of the Board of Appeal took part in the decision in breach of Article 24, paragraph 1, or despite being excluded pursuant to a decision under Article 24, paragraph 4;
(b) the Board of Appeal included a person not appointed as a member of the Boards of Appeal;
(c) a fundamental violation of Article 113 occurred;
(d) any other fundamental procedural defect defined in the Implementing Regulations occurred in the appeal proceedings; or
(e) a criminal act established under the conditions laid down in the Imple- menting Regulations may have had an impact on the decision.
(3) The petition for review shall not have suspensive effect.
(4) The petition for review shall be filed in a reasoned statement, in accordance with the Implementing Regulations. If based on paragraph 2(a) to (d), the petition shall be filed within two months of notification of the decision of the Board of Appeal. If based on paragraph 2(e), the petition shall be filed within two months of the date on which the criminal act has been established and in any event no later than five years from notification of the decision of the Board of Appeal. The petition shall not be deemed to have been filed until after the prescribed fee has been paid.
(5) The Enlarged Board of Appeal shall examine the petition for review in accordance with the Implementing Regulations. If the petition is allowable, the Enlarged Board of Appeal shall set aside the decision and shall re-open proceedings before the Boards of Appeal in accordance with the Implementing Regulations.
(6) Any person who, in a designated Contracting State, has in good faith used or made effective and serious preparations for using an invention which is the subject of a published European patent application or a European patent in the period between the decision of the Board of Appeal and publication in the European Patent Bulletin of the mention of the deci- sion of the Enlarged Board of Appeal on the petition, may without payment continue such use in the course of his business or for the needs thereof.
PART VII
COMMON PROVISIONS
Chapter I
Common provisions governing procedure
Article 113
Right to be heard and basis of decisions
(1) The decisions of the European Patent Office may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments.
(2) The European Patent Office shall examine, and decide upon, the European patent application or the European patent only in the text submitted to it, or agreed, by the applicant or the proprietor of the patent.
Article 114
Examination by the European Patent Office of its own motion
(1) In proceedings before it, the European Patent Office shall examine the facts of its own motion; it shall not be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.
(2) The European Patent Office may disregard facts or evidence which are not submitted in due time by the parties concerned.
Article 115
Observations by third parties
In proceedings before the European Patent Office, following the publication of the European patent application, any third party may, in accordance with the Implementing Regulations, present observations concerning the patentability of the invention to which the application or patent relates. That person shall not be a party to the proceedings.
Article 116
Oral proceedings
(1) Oral proceedings shall take place either at the instance of the European Patent Office if it considers this to be expedient or at the request of any party to the proceedings. However, the European Patent Office may reject a request for further oral proceedings before the same department where the parties and the subject of the proceedings are the same.
(2) Nevertheless, oral proceedings shall take place before the Receiving Section at the request of the applicant only where the Receiving Section considers this to be expedient or where it intends to refuse the European patent application.
(3) Oral proceedings before the Receiving Section, the Examining Divi- sions and the Legal Division shall not be public.
(4) Oral proceedings, including delivery of the decision, shall be public, as regards the Boards of Appeal and the Enlarged Board of Appeal, after publication of the European patent application, and also before the Opposition Divisions, in so far as the department before which the proceedings are taking place does not decide otherwise in cases where admission of the public could have serious and unjustified disadvantages, in particular for a party to the proceedings.
Article 117
Means and taking of evidence
(1) In proceedings before the European Patent Office the means of giving or obtaining evidence shall include the following:
(a) hearing the parties;
(b) requests for information;
(c) production of documents;
(d) hearing witnesses;
(e) opinions by experts;
(f) inspection;
(g) sworn statements in writing.
(2) The procedure for taking such evidence shall be laid down in the Im- plementing Regulations.
Article 118
Unity of the European patent application or European patent
Where the applicants for or proprietors of a European patent are not the same in respect of different designated Contracting States, they shall be regarded as joint applicants or proprietors for the purposes of proceedings before the European Patent Office. The unity of the application or patent in these proceedings shall not be affected; in particular the text of the applica- tion or patent shall be uniform for all designated Contracting States, unless this Convention provides otherwise.
Article 119
Notification
Decisions, summonses, notices and communications shall be notified by the European Patent Office of its own motion in accordance with the Im- plementing Regulations. Notification may, where exceptional circumstances so require, be effected through the intermediary of the central industrial property offices of the Contracting States.
Article 120
Time limits
The Implementing Regulations shall specify:
(a) the time limits which are to be observed in proceedings before the European Patent Office and are not fixed by this Convention;
(b) the manner of computation of time limits and the conditions under which time limits may be extended;
(c) the minima and maxima for time limits to be determined by the Euro- pean Patent Office.
Article 121
Further processing of the European patent application
(1) If an applicant fails to observe a time limit vis-à-vis the European Pa- tent Office, he may request further processing of the European patent ap- plication.
(2) The European Patent Office shall grant the request, provided that the requirements laid down in the Implementing Regulations are met. Other- wise, it shall reject the request.
(3) If the request is granted, the legal consequences of the failure to ob- serve the time limit shall be deemed not to have ensued.
(4) Further processing shall be ruled out in respect of the time limits in Ar- ticle 87, paragraph 1, Article 108 and Article 112a, paragraph 4, as well as the time limits for requesting further processing or re-establishment of rights. The Implementing Regulations may rule out further processing for other time limits.
Article 122
Re-establishment of rights
(1) An applicant for or proprietor of a European patent who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit vis-à-vis the European Patent Office shall have his rights re-established upon request if the non-observance of this time limit has the direct consequence of causing the refusal of the European patent application or of a request, or the deeming of the application to have been withdrawn, or the revocation of the European patent, or the loss of any other right or means of redress.
(2) The European Patent Office shall grant the request, provided that the conditions of paragraph 1 and any other requirements laid down in the Implementing Regulations are met. Otherwise, it shall reject the request.
(3) If the request is granted, the legal consequences of the failure to ob- serve the time limit shall be deemed not to have ensued.
(4) Re-establishment of rights shall be ruled out in respect of the time limit for requesting re-establishment of rights. The Implementing Regulations may rule out re-establishment for other time limits.
(5) Any person who, in a designated Contracting State, has in good faith used or made effective and serious preparations for using an invention which is the subject of a published European patent application or a European patent in the period between the loss of rights referred to in paragraph 1 and publication in the European Patent Bulletin of the mention of re-establishment of those rights, may without payment continue such use in the course of his business or for the needs thereof.
(6) Nothing in this Article shall limit the right of a Contracting State to grant re-establishment of rights in respect of time limits provided for in this Con- vention and to be observed vis-à-vis the authorities of such State.
Article 123
Amendments
(1) The European patent application or European patent may be amended in proceedings before the European Patent Office, in accordance with the Implementing Regulations. In any event, the applicant shall be given at least one opportunity to amend the application of his own volition.
(2) The European patent application or European patent may not be amended in such a way that it contains subject-matter which extends beyond the content of the application as filed.
(3) The European patent may not be amended in such a way as to extend the protection it confers.
Article 124
Information on prior art
(1) The European Patent Office may, in accordance with the Implementing Regulations, invite the applicant to provide information on prior art taken into consideration in national or regional patent proceedings and concerning an invention to which the European patent application relates.
(2) If the applicant fails to reply in due time to an invitation under para- graph 1, the European patent application shall be deemed to be withdrawn.
Article 125
Reference to general principles
In the absence of procedural provisions in this Convention, the European Patent Office shall take into account the principles of procedural law gener- ally recognised in the Contracting States.
Article 126
(deleted)
Chapter II
Information to the public or to official authorities
Article 127
European Patent Register
The European Patent Office shall keep a European Patent Register, in which the particulars specified in the Implementing Regulations shall be recorded. No entry shall be made in the European Patent Register before the publication of the European patent application. The European Patent Register shall be open to public inspection.
Article 128
Inspection of files
(1) Files relating to European patent applications which have not yet been published shall not be made available for inspection without the consent of the applicant.
(2) Any person who can prove that the applicant has invoked the rights under the European patent application against him may obtain inspection of the files before the publication of that application and without the consent of the applicant.
(3) Where a European divisional application or a new European patent application filed under Article 61, paragraph 1, is published, any person may obtain inspection of the files of the earlier application before the publication of that application and without the consent of the applicant.
(4) After the publication of the European patent application, the files relat- ing to the application and the resulting European patent may be inspected on request, subject to the restrictions laid down in the Implementing Regu- lations.
(5) Even before the publication of the European patent application, the Eu- ropean Patent Office may communicate to third parties or publish the par- ticulars specified in the Implementing Regulations.
Article 129
Periodical publications
The European Patent Office shall periodically publish:
(a) a European Patent Bulletin containing the particulars the publication of which is prescribed by this Convention, the Implementing Regulations or the President of the European Patent Office;
(b) an Official Journal containing notices and information of a general character issued by the President of the European Patent Office, as well as any other information relevant to this Convention or its implementation.
Article 130
Exchange of information
(1) Unless this Convention or national laws provide otherwise, the European Patent Office and the central industrial property office of any Contracting State shall, on request, communicate to each other any useful information regarding European or national patent applications and patents and any proceedings concerning them.
(2) Paragraph 1 shall apply to the communication of information by virtue
of working agreements between the European Patent Office and
(a) the central industrial property offices of other States;
(b) any intergovernmental organisation entrusted with the task of granting patents;
(c) any other organisation.
(3) Communications under paragraphs 1 and 2(a) and (b) shall not be sub- ject to the restrictions laid down in Article 128. The Administrative Council may decide that communications under paragraph 2(c) shall not be subject to such restrictions, provided that the organisation concerned treats the in- formation communicated as confidential until the European patent applica- tion has been published.
Article 131
Administrative and legal co-operation
(1) Unless this Convention or national laws provide otherwise, the European Patent Office and the courts or authorities of Contracting States shall on request give assistance to each other by communicating information or opening files for inspection. Where the European Patent Office makes files available for inspection by courts, Public Prosecutors' Offices or central industrial property offices, the inspection shall not be subject to the restrictions laid down in Article 128.
(2) At the request of the European Patent Office, the courts or other competent authorities of Contracting States shall undertake, on behalf of the Office and within the limits of their jurisdiction, any necessary enquiries or other legal measures.
Article 132
Exchange of publications
(1) The European Patent Office and the central industrial property offices of the Contracting States shall despatch to each other on request and for their own use one or more copies of their respective publications free of charge.
(2) The European Patent Office may conclude agreements relating to the exchange or supply of publications.
Chapter III
Representation
Article 133
General principles of representation
(1) Subject to paragraph 2, no person shall be compelled to be represent- ed by a professional representative in proceedings established by this Con- vention.
(2) Natural or legal persons not having their residence or principal place of business in a Contracting State shall be represented by a professional representative and act through him in all proceedings established by this Convention, other than in filing a European patent application; the Implementing Regulations may permit other exceptions.
(3) Natural or legal persons having their residence or principal place of business in a Contracting State may be represented in proceedings established by this Convention by an employee, who need not be a professional representative but who shall be authorised in accordance with the Implementing Regulations. The Implementing Regulations may provide whether and under what conditions an employee of a legal person may also represent other legal persons which have their principal place of business in a Contracting State and which have economic connections with the first legal person.
(4) The Implementing Regulations may lay down special provisions con- cerning the common representation of parties acting in common.
Article 134
Representation before the European Patent Office
(1) Representation of natural or legal persons in proceedings established by this Convention may only be undertaken by professional representatives whose names appear on a list maintained for this purpose by the European Patent Office.
(2) Any natural person who
(a) is a national of a Contracting State,
(b) has his place of business or employment in a Contracting State and
(c) has passed the European qualifying examination
may be entered on the list of professional representatives.
(3) During a period of one year from the date on which the accession of a State to this Convention takes effect, entry on that list may also be request- ed by any natural person who
(a) is a national of a Contracting State,
(b) has his place of business or employment in the State having acceded to the Convention and
(c) is entitled to represent natural or legal persons in patent matters before the central industrial property office of that State. Where such entitlement is not conditional upon the requirement of special professional qualifications, the person shall have regularly so acted in that State for at least five years.
(4) Entry shall be effected upon request, accompanied by certificates indicating that the conditions laid down in paragraph 2 or 3 are fulfilled.
(5) Persons whose names appear on the list of professional representa- tives shall be entitled to act in all proceedings established by this Conven- tion.
(6) For the purpose of acting as a professional representative, any person whose name appears on the list of professional representatives shall be entitled to establish a place of business in any Contracting State in which proceedings established by this Convention may be conducted, having regard to the Protocol on Centralisation annexed to this Convention. The authorities of such State may remove that entitlement in individual cases only in application of legal provisions adopted for the purpose of protecting public security and law and order. Before such action is taken, the President of the European Patent Office shall be consulted.
(7) The President of the European Patent Office may grant exemption from:
(a) the requirement of paragraphs 2(a) or 3(a) in special circumstances;
(b) the requirement of paragraph 3(c), second sentence, if the applicant furnishes proof that he has acquired the requisite qualification in another way.
(8) Representation in proceedings established by this Convention may al- so be undertaken, in the same way as by a professional representative, by any legal practitioner qualified in a Contracting State and having his place of business in that State, to the extent that he is entitled in that State to act as a professional representative in patent matters. Paragraph 6 shall apply mutatis mutandis.
Article 134a
Institute of Professional Representatives before the European Patent Office
(1) The Administrative Council shall be competent to adopt and amend provisions governing:
(a) the Institute of Professional Representatives before the European Pa- tent Office, hereinafter referred to as the Institute;
(b) the qualifications and training required of a person for admission to the European qualifying examination and the conduct of such examination;
(c) the disciplinary power exercised by the Institute or the European Patent Office in respect of professional representatives;
(d) the obligation of confidentiality on the professional representative and the privilege from disclosure in proceedings before the European Patent Office in respect of communications between a professional representative and his client or any other person.
(2) Any person entered on the list of professional representatives referred to in Article 134, paragraph 1, shall be a member of the Institute.
PART VIII
IMPACT ON NATIONAL LAW
Chapter I
Conversion into a national patent application
Article 135
Request for conversion
(1) The central industrial property office of a designated Contracting State shall, at the request of the applicant for or proprietor of a European patent, apply the procedure for the grant of a national patent in the following circumstances:
(a) where the European patent application is deemed to be withdrawn un- der Article 77, paragraph 3;
(b) in such other cases as are provided for by the national law, in which the European patent application is refused or withdrawn or deemed to be withdrawn, or the European patent is revoked under this Convention.
(2) In the case referred to in paragraph 1(a), the request for conversion shall be filed with the central industrial property office with which the European patent application has been filed. That office shall, subject to the provisions governing national security, transmit the request directly to the central industrial property offices of the Contracting States specified therein.
(3) In the cases referred to in paragraph 1(b), the request for conversion shall be submitted to the European Patent Office in accordance with the Implementing Regulations. It shall not be deemed to be filed until the con- version fee has been paid. The European Patent Office shall transmit the request to the central industrial property offices of the Contracting States specified therein.
(4) The effect of the European patent application referred to in Article 66 shall lapse if the request for conversion is not submitted in due time.
Article 136
(deleted)
Article 137
Formal requirements for conversion
(1) A European patent application transmitted in accordance with Arti- cle 135, paragraph 2 or 3, shall not be subjected to formal requirements of national law which are different from or additional to those provided for in this Convention.
(2) Any central industrial property office to which the European patent application is transmitted may require that the applicant shall, within a period of not less than two months:
(a) pay the national application fee; and
(b) file a translation of the original text of the European patent application in an official language of the State in question and, where appropriate, of the text as amended during proceedings before the European Patent Office which the applicant wishes to use as the basis for the national procedure.
Chapter II
Revocation and prior rights
Article 138
Revocation of European patents
(1) Subject to Article 139, a European patent may be revoked with effect for a Contracting State only on the grounds that:
(a) the subject-matter of the European patent is not patentable under Arti- cles 52 to 57;
(b) the European patent does not disclose the invention in a manner suffi- ciently clear and complete for it to be carried out by a person skilled in the art;
(c) the subject-matter of the European patent extends beyond the con- tent of the application as filed or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the con- tent of the earlier application as filed;
(d) the protection conferred by the European patent has been extended; or
(e) the proprietor of the European patent is not entitled under Article 60, paragraph 1.
(2) If the grounds for revocation affect the European patent only in part, the patent shall be limited by a corresponding amendment of the claims and revoked in part.
(3) In proceedings before the competent court or authority relating to the validity of the European patent, the proprietor of the patent shall have the right to limit the patent by amending the claims. The patent as thus limited shall form the basis for the proceedings.
Article 139
Prior rights and rights arising on the same date
(1) In any designated Contracting State a European patent application and a European patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent.
(2) A national patent application and a national patent in a Contracting State shall have with regard to a European patent designating that Contracting State the same prior right effect as if the European patent were a national patent.
(3) Any Contracting State may prescribe whether and on what terms an invention disclosed in both a European patent application or patent and a national application or patent having the same date of filing or, where priori- ty is claimed, the same date of priority, may be protected simultaneously by both applications or patents.
Chapter III
Miscellaneous effects
Article 140
National utility models and utility certificates
Articles 66, 124, 135, 137 and 139 shall apply to utility models and utility certificates and to applications for utility models and utility certificates regis- tered or deposited in the Contracting States whose laws make provision for such models or certificates.
Article 141
Renewal fees for European patents
(1) Renewal fees for a European patent may only be imposed for the years which follow that referred to in Article 86, paragraph 2.
(2) Any renewal fees falling due within two months of the publication in the European Patent Bulletin of the mention of the grant of the European patent shall be deemed to have been validly paid if they are paid within that peri- od. Any additional fee provided for under national law shall not be charged.
PART IX
SPECIAL AGREEMENTS
Article 142
Unitary patents
(1) Any group of Contracting States, which has provided by a special agreement that a European patent granted for those States has a unitary character throughout their territories, may provide that a European patent may only be granted jointly in respect of all those States.
(2) Where any group of Contracting States has availed itself of the author- isation given in paragraph 1, the provisions of this Part shall apply.
Article 143
Special departments of the European Patent Office
(1) The group of Contracting States may give additional tasks to the Euro- pean Patent Office.
(2) Special departments common to the Contracting States in the group may be set up within the European Patent Office in order to carry out the additional tasks. The President of the European Patent Office shall direct such special departments; Article 10, paragraphs 2 and 3, shall apply mutatis mutandis.
Article 144
Representation before special departments
The group of Contracting States may lay down special provisions to govern representation of parties before the departments referred to in Article 143, paragraph 2.
Article 145
Select committee of the Administrative Council
(1) The group of Contracting States may set up a select committee of the Administrative Council for the purpose of supervising the activities of the special departments set up under Article 143, paragraph 2; the European Patent Office shall place at its disposal such staff, premises and equipment as may be necessary for the performance of its duties. The President of the European Patent Office shall be responsible for the activities of the special departments to the select committee of the Administrative Council.
(2) The composition, powers and functions of the select committee shall be determined by the group of Contracting States.
Article 146
Cover for expenditure for carrying out special tasks
Where additional tasks have been given to the European Patent Office under Article 143, the group of Contracting States shall bear the expenses incurred by the Organisation in carrying out these tasks. Where special departments have been set up in the European Patent Office to carry out these additional tasks, the group shall bear the expenditure on staff, premises and equipment chargeable in respect of these departments. Article 39, paragraphs 3 and 4, Article 41 and Article 47 shall apply mutatis mutandis.
Article 147
Payments in respect of renewal fees for unitary patents
If the group of Contracting States has fixed a common scale of renewal fees in respect of European patents, the proportion referred to in Article 39, paragraph 1, shall be calculated on the basis of the common scale; the minimum amount referred to in Article 39, paragraph 1, shall apply to the unitary patent. Article 39, paragraphs 3 and 4, shall apply mutatis mutandis.
Article 148
The European patent application as an object of property
(1) Article 74 shall apply unless the group of Contracting States has speci- fied otherwise.
(2) The group of Contracting States may provide that a European patent application for which these Contracting States are designated may only be transferred, mortgaged or subjected to any legal means of execution in re- spect of all the Contracting States of the group and in accordance with the provisions of the special agreement.
Article 149
Joint designation
(1) The group of Contracting States may provide that these States may only be designated jointly, and that the designation of one or some only of such States shall be deemed to constitute the designation of all the States of the group.
(2) Where the European Patent Office acts as a designated Office under Article 153, paragraph 1, paragraph 1 shall apply if the applicant has indi- cated in the international application that he wishes to obtain a European patent for one or more of the designated States of the group. The same shall apply if the applicant designates in the international application one of the Contracting States in the group, whose national law provides that the designation of that State shall have the effect of the application being for a European patent.
Article 149a
Other agreements between the Contracting States
(1) Nothing in this Convention shall be construed as limiting the right of some or all of the Contracting States to conclude special agreements on any matters concerning European patent applications or European patents which under this Convention are subject to and governed by national law, such as, in particular
(a) an agreement establishing a European patent court common to the Contracting States party to it;
(b) an agreement establishing an entity common to the Contracting States party to it to deliver, at the request of national courts or quasi-judicial authorities, opinions on issues of European or harmonised national patent law;
(c) an agreement under which the Contracting States party to it dispense fully or in part with translations of European patents under Article 65;
(d) an agreement under which the Contracting States party to it provide that translations of European patents as required under Article 65 may be filed with, and published by, the European Patent Office.
(2) The Administrative Council shall be competent to decide that:
(a) the members of the Boards of Appeal or the Enlarged Board of Appeal may serve on a European patent court or a common entity and take part in proceedings before that court or entity in accordance with any such agreement;
(b) the European Patent Office shall provide a common entity with such support staff, premises and equipment as may be necessary for the per- formance of its duties, and the expenses incurred by that entity shall be borne fully or in part by the Organisation.
PART X
INTERNATIONAL APPLICATIONS UNDER THE PATENT
COOPERATION TREATY - EURO-PCT APPLICATIONS
Article 150
Application of the Patent Cooperation Treaty
(1) The Patent Cooperation Treaty of 19 June 1970, hereinafter referred to as the PCT, shall be applied in accordance with the provisions of this Part.
(2) International applications filed under the PCT may be the subject of proceedings before the European Patent Office. In such proceedings, the provisions of the PCT and its Regulations shall be applied, supplemented by the provisions of this Convention. In case of conflict, the provisions of the PCT or its Regulations shall prevail.
Article 151
The European Patent Office as a receiving Office
The European Patent Office shall act as a receiving Office within the meaning of the PCT, in accordance with the Implementing Regulations. Article 75, paragraph 2, shall apply.
Article 152
The European Patent Office as an International Searching Authority or International Preliminary Examining Authority
The European Patent Office shall act as an International Searching Authority and International Preliminary Examining Authority within the meaning of the PCT, in accordance with an agreement between the Organisation and the International Bureau of the World Intellectual Property Organization, for applicants who are residents or nationals of a State party to this Convention. This agreement may provide that the European Patent Office shall also act for other applicants.
Article 153
The European Patent Office as designated Office or elected Office
(1) The European Patent Office shall be
(a) a designated Office for any State party to this Convention in respect of which the PCT is in force, which is designated in the international applica- tion and for which the applicant wishes to obtain a European patent, and
(b) an elected Office, if the applicant has elected a State designated pur- suant to letter (a).
(2) An international application for which the European Patent Office is a designated or elected Office, and which has been accorded an international date of filing, shall be equivalent to 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 shall take the place of the publication of the European patent application and shall be mentioned in the European Patent Bulletin.
(4) If the Euro-PCT application is published in another language, a transla- tion into one of the official languages shall be filed with the European Pa- tent Office, which shall publish it. Subject to Article 67, paragraph 3, the provisional protection under Article 67, paragraphs 1 and 2, shall be effec- tive from the date of that publication.
(5) The Euro-PCT application shall be treated as a European patent application and shall be considered as comprised in the state of the art under Article 54, paragraph 3, if the conditions laid down in paragraph 3 or 4 and in the Implementing Regulations are fulfilled.
(6) The international search report drawn up in respect of a Euro-PCT ap- plication or the declaration replacing it, and their international publication, shall take the place of the European search report and the mention of its publication in the European Patent Bulletin.
(8) A supplementary European search report shall be drawn up in re- spect of any Euro-PCT application under paragraph 5. The Administrative Council may decide that the supplementary search report is to be dis- pensed with or that the search fee is to be reduced.
Article 154
(deleted)
Article 155
(deleted)
Article 156
(deleted)
Article 157
(deleted)
Article 158
(deleted)
PART XI
TRANSITIONAL PROVISIONS
(deleted)
PART XII
FINAL PROVISIONS
Article 164
Implementing Regulations and Protocols
(1) The Implementing Regulations, the Protocol on Recognition, the Proto- col on Privileges and Immunities, the Protocol on Centralisation, the Proto- col on the Interpretation of Article 69 and the Protocol on Staff Complement shall be integral parts of this Convention.
(2) In case of conflict between the provisions of this Convention and those of the Implementing Regulations, the provisions of this Convention shall prevail.
Article 165
Signature - Ratification
(1) This Convention shall be open for signature until 5 April 1974 by the States which took part in the Inter-Governmental Conference for the setting up of a European System for the Grant of Patents or were informed of the holding of that conference and offered the option of taking part therein.
(2) This Convention shall be subject to ratification; instruments of ratification shall be deposited with the Government of the Federal Republic of Germany.
Article 166
Accession
(1) This Convention shall be open to accession by:
(a) the States referred to in Article 165, paragraph 1;
(b) any other European State at the invitation of the Administrative Coun- cil.
(2) Any State which has been a party to the Convention and has ceased to be so as a result of the application of Article 172, paragraph 4, may again become a party to the Convention by acceding to it.
(3) Instruments of accession shall be deposited with the Government of the Federal Republic of Germany.
Article 167
(deleted)
Article 168
Territorial field of application
(1) Any Contracting State may declare in its instrument of ratification or accession, or may inform the Government of the Federal Republic of Germany by written notification at any time thereafter, that this Convention shall be applicable to one or more of the territories for the external relations of which it is responsible. European patents granted for that Contracting State shall also have effect in the territories for which such a declaration has taken effect.
(2) If the declaration referred to in paragraph 1 is contained in the instrument of ratification or accession, it shall take effect on the same date as the ratification or accession; if the declaration is notified after the deposit of the instrument of ratification or accession, such notification shall take effect six months after the date of its receipt by the Government of the Federal Republic of Germany.
(3) Any Contracting State may at any time declare that the Convention shall cease to apply to some or to all of the territories in respect of which it has given notification pursuant to paragraph 1. Such declaration shall take effect one year after the date on which the Government of the Federal Republic of Germany received notification thereof.
Article 169
Entry into force
(1) This Convention shall enter into force three months after the deposit of the last instrument of ratification or accession by six States on whose territory the total number of patent applications filed in 1970 amounted to at least 180 000 for all the said States.
(2) Any ratification or accession after the entry into force of this Convention shall take effect on the first day of the third month after the deposit of the instrument of ratification or accession.
Article 170
Initial contribution
(1) Any State which ratifies or accedes to this Convention after its entry in- to force shall pay to the Organisation an initial contribution, which shall not be refunded.
(2) The initial contribution shall be 5% of an amount calculated by applying the percentage obtained for the State in question, on the date on which ratification or accession takes effect, in accordance with the scale provided for in Article 40, paragraphs 3 and 4, to the sum of the special financial contributions due from the other Contracting States in respect of the accounting periods preceding the date referred to above.
(3) In the event that special financial contributions were not required in respect of the accounting period immediately preceding the date referred to in paragraph 2, the scale of contributions referred to in that paragraph shall be the scale that would have been applicable to the State concerned in respect of the last year for which financial contributions were required.
Article 171
Duration of the Convention
The present Convention shall be of unlimited duration.
Article 172
Revision
(1) This Convention may be revised by a Conference of the Contracting States.
(2) The Conference shall be prepared and convened by the Administrative Council. The Conference shall not be validly constituted unless at least three-quarters of the Contracting States are represented at it. Adoption of the revised text shall require a majority of three-quarters of the Contracting States represented and voting at the Conference. Abstentions shall not be considered as votes.
(3) The revised text shall enter into force when it has been ratified or ac- ceded to by the number of Contracting States specified by the Conference, and at the time specified by that Conference.
(4) Such States as have not ratified or acceded to the revised text of the Convention at the time of its entry into force shall cease to be parties to this Convention as from that time.
Article 173
Disputes between Contracting States
(1) Any dispute between Contracting States concerning the interpretation or application of the present Convention which is not settled by negotiation shall be submitted, at the request of one of the States concerned, to the Administrative Council, which shall endeavour to bring about agreement between the States concerned.
(2) If such agreement is not reached within six months from the date when the dispute was referred to the Administrative Council, any one of the States concerned may submit the dispute to the International Court of Jus- tice for a binding decision.
Article 174
Denunciation
Any Contracting State may at any time denounce this Convention. Denunciation shall be notified to the Government of the Federal Republic of Germany. It shall take effect one year after the date of receipt of such notification.
Article 175
Preservation of acquired rights
(1) In the event of a State ceasing to be party to this Convention in accordance with Article 172, paragraph 4, or Article 174, rights already acquired pursuant to this Convention shall not be impaired.
(2) A European patent application which is pending when a designated State ceases to be party to the Convention shall be processed by the Euro- pean Patent Office, as far as that State is concerned, as if the Convention in force thereafter were applicable to that State.
(3) Paragraph 2 shall apply to European patents in respect of which, on the date mentioned in that paragraph, an opposition is pending or the op- position period has not expired.
(4) Nothing in this Article shall affect the right of any State that has ceased to be a party to this Convention to treat any European patent in accordance with the text to which it was a party.
Article 176
Financial rights and obligations of former Contracting States
(1) Any State which has ceased to be a party to this Convention in accordance with Article 172, paragraph 4, or Article 174, shall have the special financial contributions which it has paid pursuant to Article 40, paragraph 2, refunded to it by the Organisation only at the time when and under the conditions whereby the Organisation refunds special financial contributions paid by other States during the same accounting period.
(2) The State referred to in paragraph 1 shall, even after ceasing to be a party to this Convention, continue to pay the proportion pursuant to Arti- cle 39 of renewal fees in respect of European patents remaining in force in that State, at the rate current on the date on which it ceased to be a party.
Article 177
Languages of the Convention
(1) This Convention, drawn up in a single original, in the English, French and German languages, shall be deposited in the archives of the Govern- ment of the Federal Republic of Germany, the three texts being equally au- thentic.
(2) The texts of this Convention drawn up in official languages of Contract- ing States other than those specified in paragraph 1 shall, if they have been approved by the Administrative Council, be considered as official texts. In the event of disagreement on the interpretation of the various texts, the texts referred to in paragraph 1 shall be authentic.
Article 178
Transmission and notifications
(1) The Government of the Federal Republic of Germany shall draw up certified true copies of this Convention and shall transmit them to the Gov- ernments of all signatory or acceding States.
(2) The Government of the Federal Republic of Germany shall notify to the Governments of the States referred to in paragraph 1:
(a) the deposit of any instrument of ratification or accession;
(b) any declaration or notification received pursuant to Article 168;
(c) any denunciation received pursuant to Article 174 and the date on which such denunciation comes into force.
(3) The Government of the Federal Republic of Germany shall register this Convention with the Secretariat of the United Nations.
IN WITNESS WHEREOF, the Plenipotentiaries authorised thereto, having presented their Full Powers, found to be in good and due form, have signed this Convention.
Done at Munich this fifth day of October one thousand nine hundred and seventy-three
