Guide for Applicants - Part 1:How to get a European patent: C. Preparing and filing a European patent application, I. Formal requirements, Claiming priority

Guide for Applicants - Part 1
How to get a European patent

E / D / F


How to get a European patent
C. Preparing and filing a European patent application
I. Formal requirements

Designation of inventor

Representation

Claiming priority

If you or your predecessor in title have duly filed an application for a patent or for the registration of a utility model or for a utility certificate or for an inventor's certificate in or for any state party to the Paris Convention for the Protection of Industrial Property, you may claim priority when filing a European patent application in respect of the same invention. You must do so no later than twelve months after filing the first application, as afterwards your right to priority is irrevocably lost (see point 218).

Art. 87
Guid. A-III, 6
Guid. C-V, 1.3

If the earlier application was filed in or for an EPC contracting state, you may also designate that state in the European application. The earlier application whose priority you claim may also be a European or international (PCT) application (see point 19).

You may claim multiple priorities in respect of one European patent application, even if they originate from different countries. You may also claim multiple priorities for any one claim. If you claim multiple priorities, time limits which run from the date of priority are computed from the earliest priority date.

Art. 88(2), (3)
Guid. C-V, 1.5

Guid. A-III, 6.3

54	To claim the priority of an earlier application you must indicate the date, country and file number of the earlier application.

Art. 88(1)
R. 38(1)-(3)
Guid. A-III, 6.5, 6.7 Guid. C-V, 3

You must also file the priority document, ie a copy of the earlier application certified by the authority with which it was filed, together with authentication of its filing date from that authority. The EPO adds a copy of the earlier application whose priority you claim to the file of the European patent application free of charge if the earlier application is either a European filing, an international filing with the EPO as receiving Office, a Japanese patent or utility model application or an international filing with the Japan Patent Office as receiving Office.

55	You must submit the declaration indicating the date and country of the earlier application when you file your European patent application. If you fail to do so, you will lose your right to priority.

R. 26(2)(g),
R. 38(2), (3)
Guid. A-III, 6.5, 6.7
Guid. C-V, 3.2

You must supply the file number and the priority document no later than sixteen months after the earliest priority date.

If you do not meet these requirements within the above time limit, you will be invited to remedy the deficiency; if you fail to do so, you will lose your right to priority (but see point 139).

Art. 91(3)
R. 41(1)
Guid. A-III, 6.9, 6.10

If a translation of the earlier application in an EPO official language is required, you must file it within a period set by the EPO, but at latest within the (extendable) period under Rule 51(4); alternatively, you may submit a declaration that the European patent application is a complete translation of the earlier application.

R. 38(5)
Guid. A-III, 6.8;
Guid. C-V, 3.4
OJ 2002, 192

56	Among the effects of a valid claim to priority is that the date of priority determines the prior art that can be cited against the European patent application.

Art. 89, 54(2), (3), Art. 60(2)

As a rule, the EPO examines only the formal conditions for claiming priority. Substantive examiners (see points 157 et seq.) normally check whether a right to priority exists if they find prior art (see point 32) from between the priority date and the date of filing of the European patent application or if they find a prior right under Art. 54(3) (see point 34). The claimed subject-matter for which priority is claimed must be derivable directly and unambiguously from the full disclosure of the invention in the priority document.

Guid. C-V, 2.1