Legal Basis
Articles
The transitional provisions determining which legal basis applies to European patent applications can be found in:
- The Act revising the Convention (or ARC hereinafter) on the Grant of European Patents (European Patent Convention) of 5 October 1973,
- the « Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000« , OJ 2007, Special Edition No. 1, p197.
Rules
Furthermore, if an article to be applied falls under the EPC 2000 regime (see below), then the corresponding rules must be those of the EPC 2000 (J10/07, reason 1.3, « Decision of the Administrative Council of 7 December 2006 amending the Implementing Regulations to the European Patent Convention 2000« , OJ 2007, Special Edition No. 1, p89, A2).
A single exception exists regarding R62 EPC (establishment of the ESOP) which applies only to European patent applications and international applications entering the European phase filed from 1 July 2005 (« Decision of the Administrative Council of 7 December 2006 amending the Implementing Regulations to the European Patent Convention 2000« , OJ 2007, Special Edition No. 1, p89, A2).
Summary of Transitional Provisions
Principle
The EPC 2000 applies to all patent applications filed from 13 December 2007 (A7(1) ARC) and to patents granted on this basis.
For applications pending on 13 December 2007 and for patents granted before 13 December 2007, the rule is that the EPC 1973 provisions apply, even if certain EPC 2000 provisions may be applicable (A7(1) ARC).
Applications Pending on 13 December 2007
The following provisions of the EPC 2000 apply to applications pending on 13 December 2007 (« Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000« , OJ 2007, Special Edition No. 1, p197, A3):
- A54(5) EPC:
- Second therapeutic application;
Pending applications as of December 13, 2007 and patents granted before December 13, 2007
The following provisions of the EPC 2000 apply to pending applications as of December 13, 2007 and to patents granted before December 13, 2007 (Decision of the Administrative Council of June 28, 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of November 29, 2000
- A135 EPC :
- Transformation;
- A137 EPC :
- Formal condition for transformation;
- A141 EPC :
- Annual official fee for the patent.
Furthermore, the following provisions of the EPC 2000 shall apply to these applications and patents to the extent that the time limits for requesting further processing or restitutio in integrum have not expired (Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000, OJ 2007, Special Edition No. 1, p197, A5):
PCT applications pending on 13 December 2007
The following provisions of the EPC 2000 shall apply (Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000, OJ 2007, Special Edition No. 1, p197, A6):
- A151 EPC :
- EPO as RO;
- A152 EPC :
- EPO as ISA or IPEA;
- A153 EPC :
- EPO as designated or elected Office.
In addition, the provisions of the EPC 1973 shall continue to apply to these applications:
- A154(3) EPC 1973 and A155(3) EPC 1973 :
- Jurisdiction of the EPO Boards of Appeal to challenge unity of invention at the international stage (EPO as ISA or IPEA).
Patents granted or granted subsequently
The following provisions of the EPC 2000 shall apply to patents granted on 13 December 2007 and to patents granted for applications pending on 13 December 2007 (Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000, OJ 2007, Special Edition No. 1, p197, A2):
- A65 EPC :
- Translation of the patent;
- A99 EPC :
- Opposition;
- A101 EPC :
- Examination of the opposition;
- A103 EPC :
- Publication of a new specification;
- A104 EPC :
- Apportionment of costs;
- A105 EPC :
- Intervention of the alleged infringer;
- A105bis EPC, A105ter EPC to A105quater EPC :
- Limitation or revocation of a patent;
- A138 EPC :
- Invalidity of European patents.
Decisions of the Boards of Appeal issued from 13 December 2007
The following provisions of the EPC 2000 shall apply to decisions of the Boards of Appeal issued from 13 December 2007 (Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the European Patent Convention of 29 November 2000, OJ 2007, Special Edition No. 1, p197, A4):
- A112a EPC :
- Review of decisions by the Enlarged Board of Appeal.
Summary of Articles
Transitional provisions – Articles (table n°1)
Transitional provisions – Articles (table n°2)
Transitional provisions – Articles (table n°3)
Transitional provisions – Articles (table n°4)Special case of « harmonized » and non-« amended » articles
Certain articles have been harmonized across the different languages but their general content has not been amended. This is, for example, the case for Article A24(3) EPC, the German version of which has been aligned with the other languages.
It was held that (T49/11) Article 7(1) of the Revision Act did not apply to articles that were merely harmonized: thus, harmonized articles apply to any patent application regardless of its filing date.
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