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6.7
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Copy of the previous application (priority document)
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A paper copy of the previous application for which priority is claimed (priority document) must be filed before the end of the sixteenth month after the date of priority. Failure to do so constitutes a deficiency which the applicant is requested to rectify (see J 1/80, OJ 9/1980, 289). Where multiple priorities are claimed, the above-mentioned time limit runs from the earliest date of priority.
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Rule 38(3)
Art. 88(2)
Art. 91(2)
Rule 41(1)
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The copy must be certified as an exact copy of the previous application by the authority which received the previous application and must be accompanied by a certificate issued by that authority stating the date of filing of the previous application (Rule 38(3), second sentence). The priority document submitted must be the original, i.e. contain the original of the certificate issued by the receiving authority.
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It is also possible to file a copy of the previous application (priority document) on physical media other than paper, e.g. CD-R, provided that:
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(i)
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the physical medium containing the or part of the priority document is prepared by the authority which received the previous application, such as to guarantee that its content cannot undetectably be altered subsequently;
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(ii)
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the content of the physical medium is certified by that authority as an exact copy of the previous application or the part contained therein; and
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(iii)
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the filing date of the previous application is also certified by that authority.
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The certificate(s) may be filed separately in paper form. The submitted medium must be readable and free of computer viruses and other forms of malicious logic.
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A digitally signed certified copy of a US patent application, as issued in electronic form by the USPTO on or after 30 July 2004, is accepted by the EPO as a priority document provided that it is filed together with the corresponding certification statement either as an attachment to an online submission of Form 1001, 1200 or 1038 or on CD. A paper printout of these electronic documents is not acceptable as a priority document (see Notice from the EPO dated 15 September 2004, OJ 11/2004, 562).
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Rule 38(4) together with the Decision of the President of the EPO dated 22 December 1998 (OJ 2/1999, 80) provide for the following exception to the requirement that a priority document be filed:
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Rule 38(4)
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If the previous application is:
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(i)
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a European patent application;
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(ii)
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an international application filed with the EPO as receiving Office under the PCT;
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(iii)
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a Japanese patent or utility model application; or
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(iv)
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an international application filed with the Japanese Patent Office as receiving Office under the PCT,
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then the EPO will include free of charge a copy of the previous application in the file of the European patent application. No request is necessary to this end. As soon as the EPO has included the copy of the previous application, it informs the applicant accordingly (Decision of the President of the EPO dated 9 March 2000, OJ 5/2000, 227). However, if the language of the previous application was not one of the official languages of the EPO, it is still necessary to file the translation or declaration under Rule 38(5) (see III, 6.8 and the Notice from the EPO published in OJ 4/2002, 192).
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CHAPTER III EXAMINATION OF FORMAL REQUIREMENTS
6.6 Priority period
6.8 Translation of the previous application
