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 First, that designation may be withdrawn from the application for the contracting state of the national right of earlier date.

See H‑III, 4.2 for the transitional applicability of Art. 54(4) EPC 1973 to applications which were pending on 13 December 2007 and patents which had already been granted on that date.

The prior art considered by the examiner might comprise documents (European or international patent applications) for which the accorded date of filing may still be under review before the EPO.

The state of the art also comprises the content of other European applications filed or validly claiming a priority date earlier than – but published under Art. 93 on or after – the date of filing or valid date of priority of the application being examined. Such earlier applications are part of the state of the art only when considering novelty and not when considering inventive step.

In order to overcome the language barrier constituted by a document in an unfamiliar non-official language, it might be appropriate for the examiner to rely on a machine translation of said document (see T 991/01), which is sent to the applicant (see B‑X, 9.1.3). If only part of the translated document is relevant, the particular passage relied upon must be identified (see B‑XI, 3.2).