6.2 Extent of the obligation to be represented – appointment of a professional representative

Pursuant to Art. 133(2) in combination with Art. 153(2) and Art. 150(2), applicants having neither a residence nor their principal place of business within the territory of one of the contracting states must act through a professional representative entitled to practise in proceedings before the EPO, as is the case for Euro-direct applications (Art. 134(1)) (A‑VIII, 1). Representation by a legal practitioner under Art. 134(8) is also allowed (A‑VIII, 1.3). Such legal practitioners are thus treated in the same way as a professional representative within the meaning of Art.134(1).

If a representative must be appointed, this must be done within the 31-month period, i.e. before the start of the proceedings before the EPO as designated/elected Office. Appointing a representative, where applicable, is thus a further requirement (A‑XII, 4.4). If this requirement is not met, the procedure under Rule 163(5) applies (A‑XIII, 11.5). For so long as the obligation to appoint a professional representative or legal practitioner has not been met, the EPO as a designated/elected Office will send any communication, e.g. the combined communication under Rules 160 and 112 concerning a loss of rights, to the address of the applicant, and not to the international agent where such an agent was appointed for the procedure in the international phase.

Professional representatives and other representatives must identify themselves as having been appointed for the application concerned (A‑XII, 6.2.1).

Applicants having neither a residence nor their principal place of business within the territory of one of the contracting states who do not themselves take the required steps for entry into the European phase within the 31-month period may, after expiry of that time limit, perform these and the other procedural steps – for example, filing the request for examination together with a further processing request and filing a request for re-establishment of rights (see A‑XIII, 9.2) – only through a professional representative or legal practitioner entitled to practise before the EPO. Any procedural steps applicants requiring representation take themselves have no legal effect. After expiry of the 31-month period, all acts except fee payments (A‑X, 10) must therefore be performed by a representative. The same applies if an effective request for early processing is filed (A‑XII, 7.1). However, payments may be made by applicants themselves or by any third party.

Up to expiry of the 31-month period, however, any applicant may comply with any requirement due either by acting themselves or by acting through a representative entitled to practise before the EPO. This means, for example, that, within the 31-month period, applicants may themselves sign and file EPO Form 1200, submit amendments, file a translation of the application, file a request for early processing, submit missing information on one or more of the applicants, etc. The fact that an applicant may act on their own behalf until the EPO has become competent as designated/elected Office (A‑XII, 3.2) follows from the principles laid down in Art. 150(2) and Art. 153(2) and Art. 11(3) PCT (A‑XII, 1.1). The right to initiate the European phase is comparable to an applicant's right to file a Euro-direct application without being represented by a professional representative.