6. Rights of use under Article 122(5) EPC

In J 5/79 (OJ 1980, 71) the board stated that according to Art. 122(6) EPC 1973 (Art. 122(5) EPC), third party rights of use 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. In the case at issue, the restoration related to an application that was unpublished at the material time, so on that ground alone there could be no third party rights of use. In addition, the restoration of rights had not been made public. Third party rights to continue use of an invention where an applicant's rights have been lost and restored cannot arise if the loss and restoration of the applicant's rights occur before publication of the European patent application.

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