Instead of filing application documents, the applicant can file a reference to a previously filed application according to Rule 40(1)(c). The previously filed application relied on for the reference does not need to be claimed as priority.

Details required on the date of filing

According to Rule 40(2), in order to qualify for a date of filing, the applicant must indicate the following details on the filing date:

The previous application referred to may also be an application for a utility model.

Copy of the previously filed application

The applicant must supply a certified copy of the previously filed application within two months of the filing date (Rule 40(3)). However, according to Rule 40(3), last sentence, this requirement is dispensed with where the previously filed application is already available to the EPO under the conditions specified by the President. According to the Decision of the President of the EPO dated 12 July 2007, Special edition No. 3, OJ EPO 2007, B.1, a certified copy does not need to be filed, where the previously filed application is one of the following:

If the previously filed application is any of the above, then a copy will be automatically included in the file by the EPO.

Translation of the previously filed application

If the previously filed application is not in an official language of the EPO, the applicant must also file a translation into one of those languages within two months of the filing date (Rule 40(3)). If the translation of the previously filed application is already available to the EPO, a copy of this will be included in the file free of charge and the applicant will not need to file it (Rule 40(3)).

Note that where the previously filed application is in a language according to Art. 14(4) (an official language of a Contracting State to the EPC), the application may qualify for a reduction of the filing fee, provided that the applicant is entitled according to Rule 6(3) (see XI, 9.2.1 and XI, 9.2.2). The reduction applies even in cases where the description is filed by reference to a previously filed application according to Rule 40(1)(c), where the previously filed application is in a language specified in Art 14(4) but the claims are filed after the date of the filing in accordance with Rule 57(c) and Rule 58 and in an official language of the EPO. This is because the essential element for establishing a filing date (the provision of a description, cf. Rule 40(1)(c)) has been provided in a language giving rise to the entitlement to the reduction (see G 6/91, OJ 9/1992,  491 mutatis mutandis).

The claims

The applicant also has the option of indicating that he wishes the claims of the previously filed application to take the place of claims in the application as filed. Such an indication must be made on the date of filing, preferably by crossing the appropriate box in the Request for Grant (Form 1001). If this indication is made, then the claims of the previously filed application will form the basis for the search, and will satisfy the requirement of Rule 57(c), so that an invitation under Rule 58 to file claims later will not be issued.

If the applicant does not refer to the claims of the previously filed application, but refers only to the description and any drawings thereof, he may at the same time as filing the reference (i.e. on the date of filing), file a set of claims. If the applicant does not do so, he will be invited by the EPO to file claims (see III, 15).