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8. Rights of use under Article 122(5) EPC
VI.E.8. Rights of use under Article 122(5) EPC
Art. 122(5) EPC corresponds to Art. 122(6) EPC 1973 and is substantively unchanged (see OJ SE 4/2007).
In J 5/79 (OJ 1980, 71) the board stated that according to Art. 122(6) EPC 1973, third party rights of user arose only where the restoration related to an already published European patent application or a European patent; those whose commercial interests were at stake should be entitled to be sure that protection, the existence of which was public knowledge, and which had fallen into the public domain, no longer had effect. The board stated that the basis of this rule had never been questioned. In the case at issue, the restoration related to an application that was unpublished at the material time, so on that ground alone there could be no third party rights of user.
There was another requirement of Art. 122(6) EPC 1973, before third party rights could arise, which was also lacking in the case at issue, namely that the restoration of rights should be made public. Publication concerning European patent applications and patents took place in the "European Patent Bulletin". According to Art. 129(a) EPC 1973, this Bulletin was to contain entries made in the Register of European Patents as well as other particulars the publication of which was prescribed by the EPC 1973. Particulars of the restoration of rights within the period in default in the case at issue constituted no such "other particulars". In accordance with Art. 127, second sentence, EPC 1973, no entries could be made in the Register of Patents prior to publication of the European patent application. Even in the case of published applications, R. 92(1)(u) EPC 1973 (R. 143(1)u) EPC), provided that the date of re‑establishment of rights was to be entered only if loss of the application (R. 92(1)(n) EPC 1973; R. 143(1)(n) EPC) or the revocation of the patent (R. 92(1)(r) EPC 1973; R. 143(1)(r) EPC) had been entered in the Register. That was not so in the case at issue. The board held therefore that no rights of user could be claimed by a third party on the facts in this case that the appellant was not adversely affected by the decision under appeal.