Until the European patent application is published, the files may be inspected only by the applicant or with his consent. The online service MyFiles allows the applicant to inspect online the public part of the files relating to his still unpublished application (see Notice from the EPO dated 13 December 2011, OJ EPO 2012, 22). If a third party requests file inspection without at the same time submitting the applicant’s consent, the EPO will not release the files until the applicant’s approval has been presented.
However, prior to publication of the European patent application, any person who can prove that the applicant has invoked his rights under the application against him may also inspect the files. The rights under a European patent application are also deemed to have been invoked where rights under a first filing in a Contracting State have been invoked and the subsequent European application is mentioned at the same time (see J 14/91). If such proof is not furnished together with the request, the EPO will invite the requester within a specified period to supply proof. If he fails to do so in due time, the request will be refused.
In case of a request for inspection of the files under Art. 128(2), the applicant is entitled to notification of the identity of the person making the request. Professional representatives requesting inspection of the files on behalf of a third party pursuant to Art. 128(2) must accordingly give the third party's name and address and file an authorisation.
A decision on a request for inspection of the files pursuant to Art. 128(2) is only taken once the applicant has been heard. If the applicant objects and provides grounds for his belief that the requirements under Art. 128(2) are not met within the period set by the EPO, a decision will be delivered. This decision is subject to appeal.
Prior to publication of a European divisional application the file of this divisional application may only be inspected in the cases described in Art. 128(1) and Art. 128(2). This also applies where the parent application has already been published. However, where a European divisional application or a new European patent application filed under Art. 61(1)(b) is published, the files of the earlier application may be inspected prior to the publication of that earlier application and without the consent of the relevant applicant.