11.3 European patent applications filed before 1 April 2009 

This section refers toFor information on the relevant provisions that were in force until 31 March 2009 and that remain applicable to European patent applications filed and Euro-PCT applications entering the European phase before 1 April 2009, see the April 2025 edition of the Guidelines, A‑III, 11.3.

11.3.1Designation fee; time limits

A designation fee is payable for designating contracting states. A single joint designation fee is payable for Switzerland and Liechtenstein. All contracting states are deemed designated on payment of seven times the amount of one designation fee.

For European patent applications, the designation fees must be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report.

For divisional applications and new applications under Art. 61(1)(b) filed before 1 April 2009, the designation fees must be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report drawn up in respect of the European divisional application or the new European patent application (see A‑IV, 1.4.1).

For Euro-PCT applications entering the European phase before 1 April 2009, see A‑III, 11.3.9.

The designation fee is reduced by 30% if the applicant is eligible for a fee reduction under the fee reduction scheme for micro-entities (see A‑X, 9.4).

11.3.2Consequences of non-payment of designation fees

The designation of a state is deemed withdrawn where the designation fee has not been paid in due time for that state (see also A‑III, 11.3.4).

If the designation fee for a particular contracting state is not paid in time, the EPO sends the applicant a communication under Rule 112(1) notifying them of the designation's deemed withdrawal according to Rule 39(2). In response, the applicant can request further processing according to Art. 121 and Rule 135 in respect of this partial loss of rights (see E‑VIII, 2). This communication is not sent if the applicant waives the right to receive it in respect of the state in question by selecting the appropriate box on the request for grant form. By selecting that box, the applicant waived the right to further processing in respect of the designation or designations in question.

For Euro-PCT applications entering the European phase before 1 April 2009, see A‑III, 11.3.9.

11.3.3Amount paid insufficient

If, during the period for requesting further processing, designation fees are paid without an additional sum sufficient to cover the further processing fee, it is first necessary to establish how many designation fees including the further processing fee are covered by the total sum paid. The applicant must then be invited, under Art. 6(2) RFees, first sentence, RFees, to indicate which contracting states the designation fees plus further processing fee are to be used for (see J 23/82, mutatis mutandis). For the subsequent procedure, see A‑III, 11.3.7.

11.3.4Application deemed withdrawn

An application is deemed withdrawn where no designation fee is validly paid by expiry of the period specified in Rule 39(1).

If no designation fees are paid on time leading to the deemed withdrawal of the application under Rule 39(3), in force until 31 March 2009, the EPO sends the applicant a communication according to Rule 112(1) notifying them of this loss of rights. In response, the applicant can request further processing according to Art. 121 and Rule 135 in respect of this total loss of rights (see E‑VIII, 2).

Where the application is deemed withdrawn because of failure to pay the designation fees, the loss of rights ensues on expiry of the normal period under Rule 39(1). Similarly, the deemed withdrawal of a contracting state's designation takes effect upon expiry of the period under Rule 39(1), and not upon expiry of the period for further processing (see G 4/98, mutatis mutandis). The applicant is notified of the loss of rights and can remedy it by requesting further processing according to the procedures explained in A‑III, 11.3.2.

11.3.5Request for grant form

All states party to the EPC at the time of filing a European patent application are automatically designated when the application is filed. The designation fees payable for an application filed before 1 April 2009, however, may be paid later.

Applicants have time – until expiry of the period for paying the designation fees (Rule 39(1) and Rules 17(3) and Rule 36(4)) – to decide which contracting states they actually want their patent to cover. This is done by paying the designation fees for those states, which may include an additional sum required to validate a request for further processing.

11.3.6Indication of the contracting states

For European patent applications filed before 1 April 2009, the designation fees are deemed paid for all contracting states on payment of seven times the amount of one designation fee. Such payments simply need to be marked "designation fees" for the purpose of the payment to be established.

However, if the applicant intended to pay fewer than seven designation fees when filing the application, it was for them to indicate the contracting states they wanted to designate in the appropriate section of the request for grant form (EPO Form 1001, versions prior to April 2009). This was to ensure that the designation fees paid were properly entered in the books. Non-payment of designation fees within the basic time limit results in a communication under Rule 112(1).

In response, the applicant may request further processing in respect of the lost designation(s). However, no Rule 112(1) communication will be sent and no further processing can be requested for designations in respect of which the applicant waived these rights by selecting the appropriate box on the request for grant form or where the designation in question was withdrawn.

For applicants taking part in the automatic debiting procedure, see also A‑X, 7.2.

11.3.7Amount payable

If, given the amount payable within the time limit in question, the sum paid for designation fees during the periods under Rule 39(1) or Rule 135(1) does not cover all the contracting states indicated on the request for grant form (EPO Form 1001) and no indication is provided of the contracting states the fees are intended for, then the payer is requested to indicate, within a period stipulated by the EPO, which states are to be designated (see also A‑III, 11.3.3). If the payer fails to comply in due time, then Art. 8(2) RFees 1973 applies: the fees are deemed paid only for as many designations as are covered by the amount paid in the order in which the contracting states were designated (see J 23/82, mutatis mutandis). The designation of contracting states not covered by the fees is deemed withdrawn and the applicant is notified of the loss of rights (see A‑III, 11.3.4, paragraph 3, regarding the time at which loss of rights ensues).

11.3.8Withdrawal of designation

Subject to the final sentence of this paragraph, the applicant may withdraw a contracting state's designation at any time up to the patent's grant. A validly paid designation fee is not refunded when a designation is withdrawn. Withdrawing the designation of all contracting states results in the application being deemed withdrawn and the applicant being notified accordingly. A contracting state's designation may not be withdrawn from the date a third party proves to the EPO that they have initiated entitlement proceedings and up to the date when the EPO resumes proceedings for grant.

The applicant may withdraw designations when filing the European patent application, e.g. to avoid overlapping prior national rights with the priority application according to Art. 139(3). Timely payment of designation fees will not cause those designations that have been withdrawn to be reactivated. Furthermore, no Rule 112(1) communication will be sent in respect of a failure to pay designation fees for any designation withdrawn.

11.3.9Euro-PCT applications entering the European phase before 1 April 2009

For Euro-PCT applications entering the European phase, a designation fee with respect to each contracting state designated, up to a maximum of seven times the amount of one designation fee to designate all contracting states, must be paid within 31 months of the filing or priority date if the time limit specified in Rule 39(1) has expired earlier. The principles laid down in A‑III, 11.3.3, 11.3.6, 11.3.7 and 11.3.8 for European patent applications filed before 1 April 2009 apply to Euro-PCT applications in accordance with Art. 153(2), with the individual contracting states being indicated in the request for entry into the European phase (EPO Form 1200).

Under Rule 160(2), the designation of a contracting state for which no designation fee has been paid in time is deemed withdrawn. According to Rule 160(1), if no designation fee is paid within the basic period under Rule 159(1)(d) for a Euro-PCT application entering the European phase, the European patent application (see Art. 153(2)) is deemed withdrawn. If the EPO finds that the deemed withdrawal of a European patent application or of a contracting state's designation has occurred, it notifies the applicant of this loss of rights according to Rule 112(1). In response, the applicant can request further processing according to Art. 121 and Rule 135.

For designation fees in relation to Euro-PCT applications entering the European phase, see also E‑IX, 2.1.1 and E‑IX, 2.1.5.2.