These Guidelines provide guidance in respect of the practice in proceedings before the EPO in accordance with the European Patent Convention and its Implementing Regulations (see section 5).
The search and examination practice and procedure as regards PCT applications in the international phase are not the subject of these Guidelines, but are dealt with in the PCT International Search and Preliminary Examination Guidelines, which are available on the WIPO website (wipo.int). Whenever considered appropriate, options given in the latter Guidelines and the way they are dealt with by the European Patent Office when acting as Receiving Office, International Searching Authority, Supplementary International Searching Authority or International Preliminary Examining Authority are the subject of separate notices published in the Official Journal of the EPO and on the EPO website. Please also consult the Guidelines for Search and Examination at the EPO as PCT Authority, which are available on the EPO website. It is important to note that, in respect of international applications filed under the PCT that are subject to proceedings before the EPO, the provisions of the PCT and its Regulations apply, supplemented by the EPC. In case of conflict the provisions of the PCT prevail (Art. 150(2) EPC).
The present Guidelines are addressed primarily to examiners and formalities officers of the EPO, but are also intended to serve the parties to the proceedings and patent practitioners as a basis for illustrating the law and practice in proceedings before the EPO. As a general rule, party to the proceedings denotes the applicant, the patent proprietor or the opponent and, if the party is represented, its representative (see A‑VIII, 1).
The Guidelines cannot cover all possible occurrences and exceptions in every detail, but must be regarded as general instructions that may need to be adapted to the individual case.
The application of the Guidelines to individual European patent applications or patents is the responsibility of the formalities officers and examiners. As a general rule, parties may expect the EPO to act in accordance with the Guidelines until such time as they – or the relevant legal provisions – are amended. Notices concerning such amendments are published in the Official Journal of the EPO and on the EPO website.
It should be noted also that the Guidelines do not constitute legal provisions. For the ultimate authority on practice in the EPO, it is necessary to refer firstly to the European Patent Convention itself including the Implementing Regulations, the Protocol on the Interpretation of Article 69 EPC, the Protocol on Centralisation, the Protocol on Recognition, the Protocol on Privileges and Immunities and the Rules relating to Fees, and secondly to the interpretation put upon the EPC by the boards of appeal and the Enlarged Board of Appeal.
Where a decision or an opinion of the Enlarged Board of Appeal is referred to, this is to inform the reader that the practice described has been adopted to take account of the decision or opinion referred to. The same applies to decisions of the Legal Board of Appeal or technical boards of appeal.
In case of diverging decisions of the Legal Board of Appeal or technical boards of appeal, EPO examiners and formalities officers will, as a rule, follow the common practice as described in the Guidelines, which applies until further notice. Furthermore, the Guidelines reflect only those decisions of the boards of appeal incorporated into the EPO's general practice due to their general procedural significance; they do not take into account any deviating decisions taken in the individual case, given that the binding effect referred to in Art. 111(2) applies to that specific case only.
As regards search, the EPO also carries out searches for national patent applications from certain countries. The instructions in Part B apply in the main also to such searches.
These Guidelines do not deal with proceedings relating to unitary patent protection (Regulations (EU) No 1257/2012 and 1260/2012, OJ EPO 2013, 111 and OJ EPO 2013, 132).
Date retrieved: 17 May 2021