Chapter 5 – The European patent grant procedure
5.1 General survey
5.1.001The European patent grant procedure is an examination procedure beginning with a formalities examination and a mandatory search.
The first stage ends with the publication of the European patent application and the search report on the EPO publication server.
At the applicant's request this is followed by the second stage, substantive examination.
After the patent has been granted, there may be a further procedure in the form of opposition proceedings or, upon request of the patentee, limitation or revocation proceedings.
5.1.002The first stage of the procedure comprises an examination on filing, formalities examination, preparation of the European search report and a preliminary opinion on patentability, and publication of the application and the search report. Responsibility for this stage rests with the Receiving Section and a search division.
5.1.003The second stage comprises substantive examination and grant. Examining divisions are made up of three technically qualified examiners, who may if necessary be joined by a legally qualified examiner. Until a decision has to be taken on the application, its examination is as a rule entrusted to one of the technically qualified examiners. This examiner is responsible for issuing the requisite communications and for discussing the application with the applicant in writing, on the telephone or by videoconference.
If oral proceedings are requested by the applicant or arranged at the EPO's initiative, they are held before the full examining division by videoconference. The final decision on the grant of the patent or refusal of the application is also a matter for the full examining division.
5.1.004After the grant of the patent, opposition proceedings may be initiated by third parties. Responsibility for examining oppositions rests with the opposition divisions, which are composed in the same way as the examining divisions, except that only one member of the opposition division may have been involved in the earlier grant proceedings, and that member is not allowed to chair the division. More details about opposition proceedings can be found in points 5.5.001-5.5.012.
5.1.005After the grant of the patent, patent proprietors themselves may initiate revocation or limitation proceedings. The request for revocation or limitation may be filed at any time after the grant of the patent but not while opposition proceedings in respect of the European patent are pending. Decisions on the revocation or limitation of European patents are taken by the examining divisions. More details about revocation and limitation proceedings can be found in points 5.6.001-5.6.008.
5.1.006Appeal proceedings constitute a special procedure.3 Appeals may be filed against decisions taken by the Receiving Section, the examining divisions, the opposition divisions or the Legal Division. A decision which does not terminate proceedings as regards one of the parties can only be appealed together with the final decision, unless the decision allows separate appeal.
Decisions on appeals are taken by the independent judicial body of the boards of appeal of the EPO.
5.1.007In certain cases it may be possible to file a petition for review by the Enlarged Board of Appeal. For further details, see point 5.7.012.
3The EPO publishes information from the boards of appeal in an annual supplement to the Official Journal.