4. Persons entitled to file application

A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it (Art. 58 EPC). An application may also be filed either by joint applicants or by two or more applicants designating different contracting states (Art. 59 EPC). If the applicants for a patent are not the same for different contracting states they will be regarded as joint applicants in proceedings before the EPO (Art. 118 EPC).

In proceedings before the EPO, the applicant is deemed to be entitled to exercise the right to a European patent (Art. 60(3) EPC). This fiction only relieves the EPO of any need to investigate the existence of the entitlement. Art. 61 EPC deals with the remedies available where a person other than the patent applicant is held to be the person entitled to the grant of a European patent in a final decision by a national court.

In J 1/23 the board explained that in cases where a final sovereign decision of a national court had determined that a person other than the applicant was entitled to the grant of the European patent under Art. 61(1) EPC, the matter of how and by whom the right to the patent had been acquired was considered and settled by the competent national court, and the EPO was bound by the court's conclusion (Protocol on Jurisdiction and the Recognition of Decisions in respect of the Right to the Grant of a European Patent). The EPO was not competent to examine the substance and merits of the court's decision (G 3/92).

The Enlarged Board held in G 3/92 (OJ 1994, 607) that when it has been adjudged by a final decision of a national court that a person other than the applicant is entitled to the grant of a European patent, and that person, in compliance with the specific requirements of Art. 61(1) EPC, files a new European patent application in respect of the same invention under Art. 61(1)(b) EPC, it is not a pre-condition for the application to be accepted that the earlier original usurping application is still pending before the EPO at the time the new application is filed.