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Case Law of the Boards of Appeal

 
 
10. Publication of the application

Art. 93 EPC concerns the publication of the European patent application, which should take place as soon as possible after the expiry of a period of eighteen months from the date of filing, or, if priority has been claimed, from the date of priority, unless the applicant requests earlier publication. Under R. 67(1) EPC (R. 48 EPC 1973), the President of the EPO shall determine when the technical preparations for publication of the patent application are deemed to have been completed. The application shall not be published if it has been finally refused or withdrawn or is deemed to be withdrawn before the termination of the technical preparations for publication (R. 67(2) EPC).

In J 5/81 (OJ 1982, 155) it was stated that the key date for completion of the technical preparations for publication under Art. 93 EPC 1973 specifiable pursuant to R. 48(1) EPC 1973 could be said to give the applicant a certain minimum period of time within which his withdrawal of the application also prevented its publication. If the application was not withdrawn until after the key date, the applicant could no longer rely on its not being published. Nevertheless, the EPO was allowed by law to prevent publication, at its own discretion.