OJ EPO 2011, 420

Article 115 EPC enables third parties to present observations concerning the patentability of the invention to which a European patent application or patent relates. There are no fees for presenting such observations.

Within the framework of the "Raising the Bar" project (2nd basket), the EPO has decided to facilitate and promote the filing of well-structured and concise third party observations in order to further improve the quality of granted European patents. Observations containing very relevant objections can also considerably reduce the length of the procedure.

The EPO has also changed its practice to ensure that examining and opposition divisions comment explicitly on the relevance of third party observations. This increases the transparency of the procedure, which was a general desire identified during the "Raising the Bar" project.

Therefore, the EPO has implemented a pilot scheme, available to third parties from 1 August 2011, by which an online form can be used to file these observations. This form will be accessible from the EPO website (tpo.epo.org). The structure of the form has been specifically designed to encourage concise and well-reasoned observations which can be quickly understood and evaluated by examiners.

Please note that as a pilot scheme the online form will be subject to review. The use of such a form to file third party observations has been made possible by the decision of the President dated 10 May 2011 (OJ EPO 2011, 418).

Formal requirements

Article 115 EPC applies only to published European patent applications and patents, for which proceedings are pending before the EPO.

Observations should be filed in an official language of the EPO (English, French or German).

Supporting documents, e.g. prior art citations, can be written in any language. However, the EPO may require the third party to file a translation into an official language. If the required translation is not filed in due time, the EPO may disregard the document in question.

Observations may be filed anonymously. Any offensive language will be removed before the submission is added to the file and forwarded to the applicant/proprietor.

Observations may not concern formal aspects, but should be restricted to the substantive requirements of the EPC, e.g. Articles 52-57 EPC.

While the use of the online form is recommended, existing mechanisms for filing documents with the EPO may continue to be used. A printable version of the form is available to assist those who do not wish to use the online form.

Treatment of observations

Firstly it is important to note that, subject to the formal requirements mentioned above, submissions filed as third party observations will be placed in the public part of the file of the patent application or patent. This means that they will be accessible to the public.

All observations meeting the above formal requirements will be considered by the examining or opposition division, which will then comment on the relevance of the observations in the next substantive communication to the parties of the proceedings.

The third party is not a party to the proceedings before the EPO and so will not be informed directly or be further involved in proceedings. However, the progress of proceedings before the EPO can be followed online using the European Patent Register which includes an email alert service.