OJ EPO 1996, 81

1. With effect from 8 June 1995 it has been possible to file a provisional patent application in the USA. The "provisional application for patent" provided for in 35 USC, section 111(b), allows applicants to file a provisional application with USPTO under simplified conditions. In order to establish an effective filing date, all that need be submitted are a description of the invention and the drawings necessary for an understanding of the invention.

2. The provisional application cannot as such lead to the grant of a patent as it is not examined and is deemed abandoned 12 months after filing. It does however give rise to a priority date for a subsequent, regular national application for the invention which is filed within 12 months of the date of filing of the provisional application with a reference to the provisional application (35 USC, section 119(e)).

3. Since the provisional application meets in substantive terms the requirements the EPC places on a duly filed national application in order to establish priority and because the subsequent fate of this filing is immaterial, the EPO, while acknowledging the independent decision-making competence of the EPO boards of appeal and the courts of the contracting states, recognises the provisional application for patent as giving rise to a right of priority within the meaning of Article 87(1) EPC.