11.2 Missing file number or copy of priority claim

Pursuant to Rule 163(2), if the applicant did not ensure that a certified copy of the priority document or, where a copy need not be filed, the file number of the application from which priority is claimed was made available to the EPO during the international phase, they must provide that document or file number within the 31-month period unless an exception applies. The copy is deemed filed (A‑I, 4.1.3.1; A‑III, 6.7.2) if priority is claimed from a European patent application or an international application filed with the EPO as receiving Office, unless a copy of the previous application cannot be retrieved (OJ EPO 2021, A83).

If no exception applies, the EPO invites the applicant to furnish a certified copy and/or number within a period of two months set in the invitation under Rule 163(2). This time limit cannot be extended. If the certified copy and/or the file number is not submitted within the time limit set in the invitation, the priority right is lost. The applicant will be notified accordingly of the loss of the right of priority in a communication under Rule 112(1) (A‑III, 6.11). The effect of the loss is that any intermediate document(s) found will become relevant for the assessment of patentability under Art. 54(2) or Art. 54(3), as applicable.

The loss of the priority right may be remedied by a request for further processing under Art. 121. The request will be granted on condition that the certified copy of the previous application and/or the file number is filed and the fee for further processing is paid within two months of notification of the loss of rights (E‑VIII, 2).

However, 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 will not necessarily invite them to furnish it with a copy of the priority document (Rule 17.2(a) PCT, second sentence, PCT). Thus, where a priority document has not been received from the IB and is missing on PATENTSCOPE, but the applicant has requested the receiving Office to forward the priority document(s) to the IB or requested the IB to obtain the certified copy of the previous application(s) from DAS, no loss of rights will occur (F‑VI, 2.1). In this case, substantive examination may begin, but the decision to grant will not be taken until the priority document is furnished. The applicant is informed accordingly.

Furthermore, if the priority document is not on file, substantive examination may be started, provided that no intermediate documents under Art. 54(2) or Art. 54(3) have been found 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 received. In this 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 for the assessment of patentability of the invention claimed is not a document under Art. 54(2) or under Art. 54(3). For more details of the processing of such cases in examination, see F‑VI, 3.4.

General information on priority claims in the procedure before the EPO as designated/elected Office is provided in A‑XII, 5.4.