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Case Law of the Boards of Appeal

 
 
6.2. Designation of the inventor

The European patent application shall designate the inventor. If the applicant is not the inventor or is not the sole inventor, the designation shall contain a statement indicating the origin of the right to the European patent (Art. 81 EPC).

A European patent application must also contain a request for the grant of a European patent (Art. 78(1) EPC). Under R. 19 EPC, the request for grant of a European patent shall contain the designation of the inventor. If the designation of the inventor is not made in accordance with this Rule, the EPO shall inform the applicant under R. 60(1) EPC that the application will be refused unless the designation is made within sixteen months of the date of filing of the application, or, if priority is claimed, of the date of priority. This period is deemed to have been observed if the information is communicated before completion of the technical preparations for the publication of the patent application.

R. 19(1) EPC requires consent to the rectification of a designation of inventor to be given by a "wrongly designated" person. In J 8/82 (OJ 1984, 155), the Legal Board of Appeal held that a person already named whose name is not to be cancelled from the designation is not a "wrongly designated" person within the meaning of the Rule and his consent to the addition of the name of another person is not required. (The Legal Board of Appeal's finding in this decision on the allocation of responsibility between the Receiving Section and Examining Division for making a decision concerning such requests was overruled in J 5/01 see point 5.5.3 above).

The issue which arose in J 1/10 was whether the legal position regarding designation of the inventor is changed by early publication of the European patent application at the applicant's request under Art. 93(1)(b) EPC, which can mean that the European patent application as published does not tell the public who the inventor is. In the board's judgment, early publication under Art. 93(1)(b) EPC did not affect the time period under R. 60(1) EPC for filing the designation of the inventor. If it did, it would shorten the 16-month period for filing that designation. However, there was no legal basis for assuming any connection between early publication and a reduction in the 16-month period. Nor could this be inferred from R. 60(1) EPC or the provisions governing the procedure for rectifying deficiencies (Art. 90(3) and (4) EPC).