Oral proceedings are a fundamental right under Article 116(1) of the EPC, which states: “Oral proceedings shall take place either at the instance of the European Patent Office if it considers this to be expedient or at the request of any party to the proceedings.” If written proceedings before the EPO do not result in a decision meeting the desires of a party, oral proceedings may be held. In practice, applicants almost always get one or two more opportunities to do so, but it is good to understand that the EPO need not do so.įinally, Article 114(2) stipulates that parties to EPO proceedings should meet the time limits given by the EPO: “The European Patent Office may disregard facts or evidence which are not submitted in due time by the parties concerned.” However, thereafter the EPO has no further obligation to allow the applicant to make additional amendments – Article 137(3) of the EPC explicitly states: “No further amendment may be made without the consent of the Examining Division.” This rule gives the EPO significant legal power to prohibit applicants from making further amendments. Together with the opinion accompanying the European search report, the applicant will be invited to comment on the search opinion and, if desired, file amended application documents (Rules 70a and 137 of the EPC). Only upon entering the European phase after the Patent Cooperation Treaty phase is it allowed to do so before the EPO starts the search (Rule 161 of the EPC). For instance, in accordance with Rule 137 of the EPC, an applicant may not amend its patent application in any way before it receives the search report. For example, after an applicant has filed an application, it may take a while before it gets an opportunity to do so.
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Both the European patent attorney and the applicant/owner have a responsibility here.Īrticles 113, 114 and 116 and Rules 116 and 137 of the European Patent Convention (EPC) provide the general legal basis for how to interact with the EPO.Īrticle 113 instructs the EPO to provide parties concerned with the option to defend their case: “The decisions of the European Patent Office may only be based on grounds or evidence on which the parties concerned have had an opportunity to present their comments.” However, parties cannot simply file documents to defend their case at any time they like. This chapter explains the legal background, but also provides ways to avoid such pitfalls. In opposition, no such repair is available. However, this may be a costly and unnecessary affair. In examination, this can be repaired by filing a divisional application. Attorneys who do not correctly follow the formal rules for preparing and conducting oral proceedings can end up with empty hands. EPO proceedings have become increasingly formal, especially in relation to oral proceedings. An attorney had significant freedom to change pending claims extensively. Oral proceedings – especially before an examining division – also tended to be informal.
During such a meeting, the other two members of the examining division would be absent. Attorneys could also simply make an appointment with an examiner for an informal meeting to discuss a case in person. Senior European patent attorneys will, with a certain nostalgia, remember the ‘good old days’ in which they could easily call an examiner of the European Patent Office (EPO) and informally discuss a pending application. How to prepare for oral proceedings for European patentsĪuthors: Hans Hutter and René van Duijvenbode
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