Where a national right of an earlier date exists in a contracting state designated in the application, there are several possibilities of amendment open to the applicant. First, he may simply withdraw that designation from his application for the contracting state of the national right of earlier date. Second, for such state, he may file claims which are different from the claims for the other designated states (see H‑II, 3.3, and H‑III, 4.4). Third, the applicant can limit his existing set of claims in such a manner that the national right of earlier date is no longer relevant.[Rule 138; ]
In opposition or limitation proceedings, the proprietor may file claims which are different from the claims for the other contracting states or limit the existing set of claims in such a manner that the national right of earlier date is no longer relevant (see H‑III, 4.4, and D‑X, 10.1).
In opposition proceedings, the proprietor may also request the revocation of the patent for the contracting state of the national right of earlier date (see D‑I, 3; D‑VIII, 1.2.5; E‑VIII, 8.4). However, this is not possible in limitation or revocation proceedings (see D‑X, 3).
Amendment of the application to take account of prior national rights is neither required nor suggested (see also H‑III, 4.4). However, if the claims have been amended, then amendment of the description and drawings is required if necessary to avoid confusion.
Date retrieved: 30 December 2018
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EPC Implementing Rules
EPO Guidelines - B Search
EPO Guidelines - D Opposition and Limitation/Revocation Procedures
XGL D VIII 1.2.5 Revocation of the patent in the event that the patent proprietor no longer wishes the patent to be maintained as granted