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Guidelines for Examination

 
 

2.4.3 Applications resulting from a decision under Art. 61

If, as a result of a final decision, it is adjudged that a person other than the applicant is entitled to the grant of a patent, that person may file a new European patent application under Art. 61(1)(b). In this case, the provisions of Art. 76(1) apply mutatis mutandis to the new application filed under Art. 61(1)(b).

This means that the new application must not contain any subject-matter extending beyond the earlier (unentitled) application as originally filed. Furthermore, Art. 123(2) means that this new application may not be amended in such a way as to extend its subject-matter beyond its content as originally filed, even where the subject-matter in question is contained in the earlier application (for more details see C‑IX, 2.1).