3. Transfer of the European patent application 

A European patent application may be transferred for one or more of the designated contracting states.

Art. 72 is an autonomous provision which governs only the formal requirements for a transfer. The EPO registers a transfer of rights in respect of a pending European patent application (see A‑IV, 1.1.1 and J 10/93) in the European Patent Register on request, if the conditions in Rule 22 are fulfilled. The registration of the transfer may be subject to the payment of an administrative fee under the conditions laid down by the President of the EPO pursuant to Rule 22(2). There is no administrative fee where the request is filed via MyEPO (see the decision of the President of the EPO dated 25 January 2024, OJ EPO 2024, A5). Otherwise, an administrative fee is payable and the request is not deemed to have been filed until it has been paid (see A‑X, 2). The amount of the fee can be found in the latest schedule of fees and expenses of the EPO (see epo.org).

Where a fee is payable and the request relates to multiple applications, a separate fee has to be paid for each one. The only way to pay fees for multiple applications simultaneously is by using the batch payment functionality in Central Fee Payment (see OJ EPO 2022, A81). Where batch payment was attempted by other means, e.g. by editing the payable amount on an electronically filed EPO Form 1038, the transfer will be registered for the first application only and the overpayment will be refunded. The fee for each of the applications for which the batch payment failed will need to be paid again, which will lead to different dates of legal effect.

Rule 22 also requires the production of documents proving the transfer. Any kind of written evidence suitable for this is admissible. This includes formal documentary proof such as the instrument of transfer itself (the original or a copy) or other official documents or extracts from them that directly verify the transfer (J 12/00). Art. 72 requires that assignment documents be signed by the parties to the contract. Assignment documents may bear handwritten, facsimile, text-string or digital signatures under the conditions specified by the EPO (see the decision of the President of the EPO dated 9 February 2024, OJ EPO 2024, A17, and the notice from the EPO dated 9 February 2024, OJ EPO 2024, A22). A facsimile signature is a reproduction of a person's signature. A text-string signature is a string of characters, preceded and followed by a forward slash (/), selected by the person to prove their identity and their intent to sign.  Documents with a facsimile signature or a text-string signature may be filed either on paper or electronically using the EPO's electronic filing services. In addition, the EPO will accept digital signatures, for example those using public key infrastructure (PKI) technology, including advanced and qualified electronic signatures within the meaning of the EU's eIDAS Regulation. Documents with a digital signature must be filed electronically (see A‑II, 1.1.1).

Documents can be signed on behalf of a legal person only by persons who are entitled to do so by law, by the legal person's articles of association or equivalent or by a special mandate. Entitlement to sign is governed by national law. In all cases, there must be an indication of the person signing's entitlement to sign, e.g. their position within the legal entity where the entitlement results directly from that position. It is up to the contracting parties to ensure that the signatories are duly authorised to sign the document under the applicable national law. However, the EPO reserves the right to request documentary proof of the person signing's entitlement to sign if necessary in view of the circumstances of a particular case. If the evidence then presented is found to be unsatisfactory, the EPO informs the party requesting the transfer accordingly and invites them to remedy the stated deficiency within a given time limit.

As a general rule, an authorisation to represent a party in proceedings before the EPO within the meaning of Rule 152, be it an individual or a general authorisation, is not as such considered to empower the representative to enter into an assignment agreement.

If the request complies with the requirements of Rule 22, the transfer is registered with the date on which the EPO received the request, the required evidence or, where applicable, the fee, whichever is the latest. If there is a minor deficiency, i.e. if all requirements were fulfilled but not completely (e.g. the request was signed but the name and/or position of the person signing were missing), the transfer will be registered – after rectification of the deficiency – with effect from the date of receipt of the original request for registration.

On the above date, the transfer becomes effective for the EPO, i.e. from that date the newly registered applicant is entitled to exercise the right to the European patent application in proceedings before the EPO (Art. 60(3)). If the transfer was for certain designated states only, Art. 118 applies.

Once a transfer has been duly entered in the European Patent Register, the registration cannot be undone, even if it turns out that one or more requirements were actually not fulfilled for reasons not apparent at the time when the transfer was registered by the EPO, e.g. where doubts arise later about whether the person signing on behalf of one of the parties was entitled to enter a transfer agreement (see decisions J 16/14 to J 22/14). The previous situation cannot be restored until the actual legal circumstances have been established. In the meantime, proceedings may have to be stayed under Rule 14 or 78 until it is clear who the legitimate applicant/proprietor is.