Guidelines for Examination:PART C: CHAPTER V PRIORITY, 3. Claiming priority, 3.4 Translation of the previous application

Guidelines for Examination
PART C
CHAPTER V PRIORITY
3. Claiming priority
3.4 Translation of the previous application

E / D / F


PART C
CHAPTER V PRIORITY
3. Claiming priority

3.3 Copy of the previous application (priority document)

3.5 Abandonment of priority claim

3.4	Translation of the previous application

Where a translation of the previous application into one of the official languages of the EPO is required, it must be filed within the time limit set by the EPO, but at the latest within the time limit laid down in Rule 51(4). Alternatively, a declaration that the European patent application is a complete translation of the previous application may be submitted within those same time limits. If this is not the case, or if the European application contains more or less text than is contained in the previous application as filed, such a declaration cannot be accepted and a complete translation must be filed. A merely different arrangement of the various elements of the application (i.e. the claims vs. the description) does not affect the validity of such a declaration (see Legal Advice No. 19/99 (OJ 5/1999, 296)).

Art. 88(1)

Rule 38(5)

Failure to file the translation or, where applicable, the declaration constitutes a deficiency which the applicant is invited to rectify within a time limit specified by the EPO (see also A-III, 6.8 and 14.2).

Art. 91(2)

Rule 41(1)

The translation or declaration under Rule 38(5) must also be filed in those cases where the EPO adds a copy of the previous application to the file (Notice from the EPO (OJ 4/2002, 192)).

In the communication under Rule 51(4) the EPO will request the applicant to file the required translation or declaration. It will do so earlier only if the translation is required for the examination as to whether the priority claimed is effective (see V, 2.1).

If the required translation or declaration is not filed within the time limit, the right of priority is lost for the European patent application (see A-III, 6.10 and 6.11). However, for reasons of legal certainty the right of priority remains effective for determining the state of the art for the purposes of Art. 54(3) (see V, 2.1 and V, 3.5) in respect of any other European patent application. In that respect it is immaterial whether the translation or declaration has been filed, as changes taking effect after the date of publication do not affect the application of Art. 54(3).