8.3. Effects on the case law due to the differences between national legislation and the EPC

Although in general a high degree of harmonisation between the EPC and national laws is desirable and has indeed been achieved, differences between national legislation and the EPC were not ruled out by the EPC (J 9/07 citing Art. 2(2) and 66 EPC 1973). In J 9/07 the Legal Board stated that according to Art. 1 EPC 1973 the EPC establishes a system of law common to the contracting states for the grant of patents for inventions. This common system of law is applicable to all European patent applications irrespective of the contracting states designated in the European patent application. Save to the extent that the EPC expressly provides otherwise, the EPO is not allowed to take into consideration, with respect to the designated state concerned, a specific national legal provision which would be more favourable to the applicant than the provisions of the EPC. This is because this would have the consequence of giving European applications unequal treatment as regards the requirements for grant depending on which state or states have been designated, contrary to Art. 1 EPC 1973. It would also go against the principle of the unity of the application enshrined in Art. 118 EPC 1973.