A European patent application may be transferred for one or more of the designated contracting states.
Art. 72 is an autonomous provision which exclusively governs the formal requirements of such transfers. The EPO registers a transfer of rights in the European Patent Register on request, upon fulfilment of the prerequisites of Rule 22. The request is not deemed to have been filed until an administrative fee has been paid. The amount of the fee is determined by the latest schedule of fees and expenses of the EPO.
Rule 22 furthermore requires the production of documents providing evidence of such a transfer. Any kind of written evidence suitable for proving the transfer is admissible. This includes formal documentary proof such as the instrument of transfer itself (the original or a copy thereof) or other official documents or extracts thereof, provided that they immediately verify the transfer (J 12/00). A declaration of the assignor only is likewise sufficient, provided that the request has been filed by the assignee.
Without prejudice to Art. 72, the transfer of a European patent application is recorded in the Register of European Patents at the request of an interested party and on production of documents satisfying the EPO that such transfer has taken place. The request is deemed not to have been filed until such time as the prescribed administrative fee has been paid.
Rule 22(1) and Rule 22(2)
Any kind of written evidence suitable to prove the transfer is admissible. A declaration signed by both parties is appropriate, but a declaration of transfer signed by the assignor would in any case be sufficient, as the assignee will in any case be notified by the EPO of the entry in the Register. Formal documentary proof (originals or certified copies), such as the instrument of transfer or official documents verifying the transfer or extracts thereof, are equally appropriate.
If the evidence presented is found to be unsatisfactory, the EPO informs the party requesting the transfer accordingly, and invites it to remedy the stated deficiencies within a given time limit.
If the request complies with the requirements of Rule 22(1), the transfer is registered with the date on which the request, the required evidence or the fee has been received by the EPO, whichever is the latest.
On the above date, the transfer becomes effective vis-à-vis the EPO, i.e. from that date the newly registered applicant is entitled to exercise the right to the European patent application in proceedings before the EPO (Art. 60(3)). If the transfer was for certain designated states only, Art. 118 applies.
In cases where the transfer is later challenged by the originally registered applicant, e.g. due to the accusation of falsified documentary evidence or an adverse situation of national civil law, the original status quo of the European Patent Register is restored until the valid legal situation has been proven, e.g. by means of a national judicial decision.
The competent department for adverse decisions regarding entries in the Register of European Patents is the Legal Division.