2.1 The EPO as designated Office by default
2.1.1 Loss of the designation EP
The EPO is no longer a designated Office in the following cases:
The first case is where the receiving Office declared the international application to be deemed withdrawn under the PCT before its effective entry into the European phase. To remedy the loss of rights, the applicant must request a review of the receiving Office's finding (A‑XV, 2 and 3). If the declaration of deemed withdrawal was notified after the date of effective entry into the European phase, the EPO will be competent in principle to continue processing the application as a European application but will consider the reasons for the declaration and may require the applicant to comply with any requirement not yet met at the time the application entered the European phase.
The second case in which the EPO can lose its status as designated/elected Office is where the applicant withdraws either the international application itself or the (regional) designation of the EPO for all or some EPC contracting states in accordance with Rule 90bis PCT before effective entry into the European phase (A‑XII, 3.2). In other words, in this case too, it is only if the application effectively entered the European phase before the date of the withdrawal of either the international application or the designation of the EPO (for all or some EPC contracting states) that it can continue to be processed as a European application for any EPC contracting states that were not withdrawn. Once a Euro-PCT application has entered the European phase, the loss of the effect under Art. 11(3) PCT has no legal effect on the European grant proceedings.
A European patent can thus be obtained for an EPC contracting state only if neither the designation of the EPO as regional office nor the international application was withdrawn before the European phase processing started. Subject to certain (strict) conditions, it may be possible to remedy the loss of right ensuing from such a withdrawal (or deemed withdrawal) when entering the European phase (A‑XV,1-3).
Another, more specific exception is laid down in Rule 160(3) and concerns Euro-PCT applications for which the applicant or one of the applicants is a Russian national, a natural person residing in Russia or a legal person, entity or body established in Russia. In this case, the designation of EPC contracting states that are member states of the European Union will be deemed withdrawn on entry into the European phase (OJ EPO 2024, A105 and OJ EPO 2024, A106) (A‑XIII, 5.1). This provision applies to international patent applications under the PCT entering the European phase before the EPO on or after 25 June 2024, irrespective of the (international) filing date.
When the international application was filed before the date on which the EPC entered into force for a certain PCT contracting state, the European phase cannot be entered as regards the state concerned, and so no European patent with effect for that state can be granted. However, it may be that an extension or validation agreement was in force between the European Patent Organisation and that state on the international filing date. Such an agreement provides for the extension or validation of a European patent application and a European patent to or in the PCT state concerned (see A‑III, 12). Thus, the automatic designation of the EPO in the PCT request may – via extension or validation – ultimately result in a national patent for a state that was not an EPC contracting state but (only) a PCT contracting state on the filing date of the international application (A‑III, 12; A‑XIII, 5.2). All current extension and validation states are also PCT contracting states.