Whether a published European application can be a conflicting application under Art. 54(3) and (4) is determined firstly by its filing date and the date of its publication; the former must be before the filing or valid priority date of the application under examination, the latter must be on or after that date. If the published European application claims priority, the priority date replaces the filing date (Art. 89) for that subject-matter in the application which corresponds to the priority application. If a priority claim was abandoned or otherwise lost with effect from a date prior to publication, the filing date and not the priority date is relevant, irrespective of whether or not the priority claim might have conferred a valid priority right.

Further it is required that the conflicting application was still pending at its publication date (see J 5/81, OJ 4/1982, 155). If the application was withdrawn or otherwise lost before the date of publication, but published because the preparations for publication had been completed, the publication has no effect under Art. 54(3), but only under Art. 54(2). Art. 54(3) must be interpreted as referring to the publication of a "valid'' application, i.e. a European patent application in existence at its publication date.

Finally, as the designation fees can be paid up to 6 months after the mention of the publication of the search report (Art. 79(2)), extended where applicable by the grace period under Rule 85a, European applications are only comprised in the state of the art pursuant to Art. 54(3) for those Contracting States for which, at the expiry of the above mentioned period, the designation is definitive, i.e. the relevant designation fees have been paid.

Other changes taking effect after the date of publication (e.g. withdrawal of a designation or of the priority claim or loss of the priority right for other reasons) do not affect the application of Art. 54(3) and (4).