2.3.5 Claim to priority
2.3.5.1 Priority document
Normally, the copy of the previous application, referred to in A‑III, 6.7, i.e. the priority document, is furnished to the EPO as designated Office by the International Bureau and not by the applicant. In accordance with Rule 17.2 PCT, the International Bureau will be requested by the EPO to furnish it with a copy as standard practice promptly, but not earlier than international publication, or, where the applicant has requested early processing (in accordance with Art. 23(2) PCT or Art. 40(2) PCT), not earlier than the date of the request. Where the applicant has complied with Rule 17.1(a) PCT, Rule 17.1(b) PCT or Rule 17.1(b-bis) PCT, the EPO may not ask the applicant himself them to furnish a copy.
Where the file number or the copy of the previous application has not yet been submitted at the expiry of the 31-month time limit, the EPO invites the applicant to furnish the number or the copy within two months. However, Rule 53(2) and the decision of the President of the EPO dated 18 October 2018, OJ EPO 2018, A78 13 November 2021, OJ EPO 2021, A83, providing an exception to the requirement that a copy of the previous application be furnished (see A‑III, 6.7 A‑III, 6.7.2), also apply to international applications entering the European phase. Furthermore, where the applicant has complied with Rule 17.1(a) PCT, Rule 17.1(b) PCT or Rule 17.1(b-bis) PCT the EPO as a designated/elected Office may not ask the applicant himself them to furnish it with a copy of the priority document (Rule 17.2(a) PCT, second sentence).
If the priority document is not on file, substantive examination may nevertheless be started, provided that neither intermediate documents (published in the priority period) nor Art. 54(3) documents exist which cause the patentability of the subject-matter claimed to depend on the validity of the priority right. However, no European patent may be granted until such time as the priority document is on file. In such a case, the applicant is informed that the decision to grant will not be taken as long as the priority document is missing.
On the other hand, the application may be refused without the priority document being on file, provided that the relevant prior art is neither an intermediate document nor an Art. 54(3) document, the relevance of which depends on the validity of the priority right. For more details on treatment of such cases in examination see F‑VI, 3.4.
Where a translation of the previous application into one of the official languages of the EPO is required, it must be filed on request from the EPO in accordance with Rule 53(3) (see A‑III, 6.8 and subsections and A-III, 6.10).