2. Applications resulting from a decision under Art. 61
2.1 General remarks
In certain circumstances, before a patent has been granted on a particular application, it may be adjudged by a final decision of a national court that a person other than the applicant is entitled to the grant of a patent on it. In this event the third party may either:
(iii)request that the application be refused.
If the first of these options is chosen, the third party becomes the applicant in place of the former applicant and the prosecution of the application is continued from the position at which it was interrupted (see also A‑IV, 2).
If, however, the third party files a new application under Art. 61(1)(b), the provisions of Art. 76(1) apply to this new application mutatis mutandis. This means that the new application is treated as though it were a divisional application i.e. it takes the filing date of filing and benefit of any priority right of the original application (see also A‑IV, 1.2). The examiner must therefore ensure that the subject-matter content of the new application does not extend beyond that of the original application as filed. The original application is deemed withdrawn on the new application's filing date of filing for the designated states concerned.