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Guidelines for Examination

 
 
2.1
General 

It may be adjudged by decision of a court or competent authority (hereinafter "court") that a person referred to in Art. 61(1), other than the applicant, is entitled to the grant of a European patent. This third party may, within three months after the decision has become final, provided that the European patent has not yet been granted, in respect of those Contracting States designated in the European patent application in which the decision has been taken or recognised or has to be recognised on the basis of the Protocol on Recognition annexed to the European Patent Convention:

(i)
prosecute the application as his own application in place of the applicant (see A-IV, 2.6 and 2.9);
(ii)
file a new European patent application in respect of the same invention (see A-IV, 2.7 and 2.9); or
(iii)
request that the application be refused (see A-IV, 2.8 and 2.9).

In a case where the application is no longer pending due to its having been withdrawn, refused or being deemed to be withdrawn, the third party can still file a new European patent application in respect of the same invention, in accordance with Art. 61(1)(b) (see G 3/92).