If the EPO notes that in respect of one or more of the designated Contracting States the content of an earlier European patent application forms part of the state of the art pursuant to Art. 54(3), two situations could arise:
the filing date of the application or patent under examination is before the date of entry into force of the EPC 2000. Art. 54(4) EPC 1973
is still transitionally applicable (see Art. 1, Decision of the Administrative Council of 28 June 2001, OJ EPO 2003 Special edition No. 1, 202). Here, if conflicting prior art gives rise to different texts of the claims, different sets of claims for the Contracting States concerned may be filed.
the filing date of the application or patent under examination is on or after the date of entry into force of the EPC 2000. As Art. 54(4) EPC 1973
has been deleted, the conflicting prior art belongs to the state of the art for all Contracting States, irrespective of the effected designations. Likewise, it is irrelevant if the designation fee(s) for the earlier European patent application has/have been paid, since there is no provision in the EPC 2000 corresponding to Rule 23a EPC 1973
. Consequently, the possibility of having different texts for different Contracting States on the basis of Art. 54(3)
no longer exists.