Entry into the European phase
Entering the European phase before the EPO – required procedural steps
- Required procedural steps
To pursue your international application before the EPO as designated or elected Office, you must perform the following procedural steps within 31 months from the date of filing, or, if your international application claims priority, from the earliest priority date:
a) File a translation into an EPO official language (German, English or French) of the international application, if the international application was not published in one of these languages;
b) Specify the application documents on which the European grant procedure is to be based;
c) Pay the filing fee and, if applicable, any additional fee for the 36th and each subsequent page;
d) Pay the designation fee if the time limit under Rule 39(1) EPC (i.e. six months after publication of the international search report) has expired before the 31-month period;
e) Pay the search fee if the (supplementary) international search report was not established by the EPO, and the EPO must therefore draw up a supplementary European search report;
f) File the written request for examination and pay the examination fee if the time limit under Rule 70(1) EPC (i.e. six months after publication of the international search report) has expired before the 31-month period;
g) Pay the renewal fee for the third year if it has fallen due (Rule 51(1) EPC) before expiry of the 31-month period;
For entry into the European phase, we recommend you complete EPO Form 1200 (available in EPO Online Filing and EPO Online Filing 2.0). The form and the online filing tool help to guide you through the above steps and ensure that none are missed.
The EPO as designated or elected Office will not start processing the application in the European phase before expiry of the 31-month period (Articles 23(1) and 40(1) PCT). If you wish the EPO to start processing the application earlier, you must file an explicit request for early processing. This can be done by selecting the relevant checkbox in EPO Form 1200. You must also have completed the above relevant steps.
- What other requirements do you need to consider?
On or after entry to the European phase, consider the following:
a) If you as the applicant reside or have your principal place of business outside an EPC contracting state, you need to appoint a professional representative (this can also be a legal practitioner) to act on your behalf before the EPO. You may still perform the steps for entering the European phase, provided you do so within the 31-month time limit.
A professional representative must be appointed on entry into the European phase. This is the case even if your international agent is entitled to act as professional representative before the EPO but was not appointed for the European phase. The appointment of an international agent is terminated with the end of the international phase. A list of professional representatives is available at epo.org.
If you do not appoint a professional representative within the time limit stated in the communication from the EPO under Rule 163(5) EPC, the Euro-PCT application will be refused.
If you, as the applicant, have a residence or principal place of business in an EPC contracting state, you are not obliged to appoint a professional representative. However, we recommend that all less experienced applicants do so.
b) If your application indicates more than 15 claims as the basis for the European grant procedure, a claims fee is payable for each claim above that number. Although you can pay them earlier, you are obliged to pay claims fees only in response to the respective communication which is issued shortly after the end of the 31-month period. This communication also gives you the opportunity to further amend the application documents, including the claims. This then means that the claims fees will be calculated on the basis of the claims received within the six-month period for replying to the communication (Rules 161 and 162 EPC).
See also Guide for applicants, section 5.2.0006.
Article 133(2) EPC (General principles of representation)
Article 134(1), (8) EPC (Representation before the EPO)
Database of professional representatives
Rule 163(5), (6) EPC (examination of formal requirements)
Rule 161 EPC, Rule 162 EPC (amendment and claims fees)
Schedule of fees (interactive)
- What happens if any of the procedural steps are not completed within the 31-month time limit?
If any of the required procedural steps, with the exception of paying the renewal fee for the third year, is not completed in time, the European patent application is deemed to be withdrawn. You will be informed about the loss of rights in a communication from the EPO under Rules 112(1) and 160(1) EPC. The loss of rights can be remedied by filing a request for further processing for each omitted act or late paid fee, as applicable.
If the renewal fee for the third year is not paid in time, it can still be paid within six months of the (deferred) due date, provided a 50% surcharge is also paid within this period. If this so-called "grace period" is also missed, the application is deemed to be withdrawn, and you will be informed accordingly in a communication under Rule 112(1) EPC. In case of a loss of rights, applicants may file a request for re-establishment of rights.
- How can I make payments to the EPO
There are three different payment methods: you can pay via debit order from a deposit account held with the EPO, by credit card or by bank transfer. Debit orders must be filed electronically using one of the EPO online filing tools or EPO Central Fee Payment. Payments by credit card or bank transfer can be made using EPO Central Fee Payment. Detailed information is available at epo.org.
- Special case – restoration of right of priority
If you missed the 12-month priority period when filing the international application, and if you filed the international application within two months from expiration of the 12-month priority period, it is possible to request restoration of right of priority before the receiving Office (RO) under Rule 26bis.3 PCT. If the RO granted a request for restoration of right of priority under the "due care" criterion, the restoration of right of priority is also effective before the EPO as designated or elected Office.
However, in the following circumstances, a new request for restoration of right of priority must be filed with the EPO as designated or elected Office (Rule 49ter.2 PCT):
a) No request for restoration was filed before the RO during the international phase (Rule 26bis.3 PCT); or
b) A negative decision was issued by the RO irrespective of the criterion applied ("due care" or "unintentionality"); or
c) A positive decision was issued by the RO based on the "unintentionality" criterion.
For a request for restoration of right of priority under Rule 49ter.2 PCT to be admissible, it must be filed within one month from expiry of the 31-month time limit (Rule 159(1) EPC) or, if a request for early processing was made, within one month from the effective date of such a request. Furthermore, under Rule 49ter.2 PCT, the fee for requesting restoration must be paid together with the request. The request for restoration also needs to be substantiated, giving reasons for the failure to file the international application within the priority period.
- Special case – incorporation by reference of correct application documents under Rule 20.5bis(d) PCT
If your international application has a filing date between 1 July 2020 and 31 October 2022, any incorporation by reference of correct application documents under Rule 20.5bis(d) PCT is not effective before the EPO as designated or elected Office. In this case, see the Official Journal (OJ EPO 2020, A81) for information on how to proceed on entry into the European phase.
If your international application has a filing date on or after 1 November 2022, any incorporation by reference of correct application documents under Rule 20.5bis(d) PCT is effective before the EPO as designated or elected Office. Detailed information is available in the Official Journal (OJ EPO 2022, A71).