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Case Law of the Boards of Appeal

 
 
4. Persons entitled to file application

A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it (Art. 58 EPC). An application may also be filed either by joint applicants or by two or more applicants designating different Contracting States (Art. 59 EPC).

In proceedings before the EPO, the applicant is deemed to be entitled to exercise the right to a European patent (Art. 60(3) EPC). This fiction only relieves the EPO of any need to investigate the existence of the entitlement. However, when a person referred to in Art. 60(1) EPC, other than the applicant, disputes the entitlement to the grant of a European patent, the entitlement may be modified under the conditions provided for in Art. 61 EPC.

The Enlarged Board held in G 3/92 (OJ 1994, 607) that when it has been adjudged by a final decision of a national court that a person other than the applicant is entitled to the grant of a European patent, and that person, in compliance with the specific requirements of Art. 61(1) EPC, files a new European patent application in respect of the same invention under Art. 61(1)(b) EPC, it is not a pre-condition for the application to be accepted that the earlier original usurping application is still pending before the EPO at the time the new application is filed.