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Guidelines for Examination

 
 

2.2 Staying the of proceedings for grant

If a third party provides proof to the EPO that he has opened proceedings against the applicant for the purpose of seeking a judgement that he is entitled to the grant of the European patent – which proof may take the form of confirmation by the court – the EPO will stay the proceedings for grant unless the third party communicates to the EPO in writing his consent to the continuation of such proceedings. This consent is irrevocable. unless the third party consents to the continuation of such proceedings. Such consent must be communicated in writing to the EPO; it is irrevocable. However, proceedings for grant may not be stayed before the publication of the European patent application. Staying must be ordered by decision. This is an interim decision, which under Art. 106(2) may only be appealed together with the final decision. These matters are dealt with by the Legal Division (see the Decision of the President of the EPO dated 12 July 2007, Special edition No. 3, OJ EPO 2007, G.1).

Under Art. 164(1), the Protocol on Recognition is an integral part of the European Patent Convention. It governs the jurisdiction and recognition of decisions for EPC Contracting States.

Proceedings for grant may not be stayed before the publication of the European patent application. In the case of a Euro-PCT application proceedings may only be stayed after expiry of the time limit for entry into the European phase.

Furthermore, Rule 14(1) only refers to national entitlement proceedings which result directly, i.e. generally and automatically, in decisions mentioned in Art. 61(1) and it does not refer to proceedings initiated before a court of a non-Contracting State (J 6/03, r.21). Jurisdiction and the recognition of decisions regarding the right to the grant of a European patent for EPC Contracting States are governed by the Protocol on Recognition, which under Art. 164(1) is an integral part of the EPC. Arbitration awards may be recognised, provided that they may automatically be recognised by all designated Contracting States, e.g. pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958.

The dates on which proceedings are stayed and resumed will be entered in the European Patent Register (Rule 143(1)(s)). They will also be communicated to the parties.

For the stay of opposition proceedings, see D‑VII, 4.1.

References

Rule 14(1)