What happens if certain filing options are not available on the day I want to file my application?
Your application is a second filing
If your European patent application or international application must be filed within the priority year, and the day on which the 12-month period expires is a Saturday, a Sunday or a public holiday at one of the EPO filing offices, the period is extended to the next day on which all the EPO filing offices are open.
Under certain circumstances, periods are also extended in the event of a planned or unplanned outage of one of the online filing tools permitted by the EPO (Rule 134(1) EPC, Rule 82quater.2 PCT), a general dislocation in the delivery or transmission of mail in a contracting state (Rule 134(2) EPC, Rule 82quater.1 PCT) or an exceptional occurrence, such as a natural disaster (Rule 134(5) EPC, Rule 82quater.1 PCT).
Where the second filing is a European patent application, and provided the requirements under Rule 134(1), (2) or (5) EPC are met, the 12-month time limit is extended, meaning that you can file the application after expiry of the priority year without losing your right to priority. However, where the second filing is an international application, note that the excuses of delay in meeting time limits under Rule 82quater.1 and quater.2 PCT do not apply to the priority period. Users can nevertheless request restoration of the priority right under Rule 26bis.3 PCT.
Your application is a first filing
In the case of a first filing, it may be important for you that your application is filed on a certain day, irrespective of whether it is a day on which the EPO is closed. Therefore, you should be aware of alternatives in the exceptional event that one of the EPO's filing options is not available on the day you intend to file your application. You should know too that the extension of periods under Rule 134 EPC is not applicable since, in the case of a first filing, no period under the EPC is missed. Similarly, the excuses of delay in meeting time limits under Rule 82quater PCT are not applicable since no time limit fixed in the Regulations under the PCT is missed. The following is a list of alternative EPO filing options from which you can choose if one or more of them is unavailable.
Online filing
Planned or unplanned outages of one of the EPO's three online filing tools – Online Filing (OLF), Online Filing 2.0 and the EPO Contingency Upload Service – normally concern only one of them at a time and should rarely last longer than eight hours. Maintenance work is usually carried out at the weekend. You should therefore check our dedicated web pages for any scheduled outages if you intend to file at a weekend: availability of online services and outages of online filing and fee payment services.
If your preferred online filing tool is not available on the day you need to file your first filing, you can use one of the other two. For OLF and Online Filing 2.0, you need to have an EPO account and set up two-factor authentication. In the unlikely event that neither of these tools is available, or it is not possible to create an EPO account or sign in to an existing EPO account, you can use the EPO Contingency Upload Service, which allows you to sign in using a link or using a means of authentication allowed by the EPO. Being prepared to use any of the three online filing tools will ensure that you can quickly switch from one to another without any extra administrative burden. To find out whether the outage is attributable to the EPO or to your working environment, and act accordingly, contact the EPO's Customer Services or check these dedicated web pages: availability of online services and outages of online filing and fee payment services. If you wish to file an international application, in addition to the above-mentioned EPO online filing tools, you can also use ePCT, information on which is available on the website of the World Intellectual Property Organization.
Alternatives to online filing
If the online filing problems are caused by your online working environment, or in the exceptional event that none of the above-mentioned online filing tools is available, you can file your application in one of the following ways:
- using the automated mailbox at the EPO filing office in Munich (at the PschorrHöfe) or the one at the EPO filing office in Berlin
- by handing the application to a porter at one of the EPO's filing offices (also possible outside office hours)
- by post – however, if you choose this option, it will in all probability not be possible to obtain the day you post your submission as the filing date
If you are located near the central industrial property office of a contracting state to the European Patent Convention, and if the law of that contracting state so permits, you can also file your European patent application directly at that central industrial property office (Article 75(1)(b) EPC). If it is possible to file or hand in documents that day and to receive a same-day date stamp for your application documents, that day will become the filing date (Rule 35 EPC). The central industrial property office will forward the application to the EPO in the shortest possible time (Rule 37 EPC).
Your application is a European divisional application
If you intend to file a European divisional application, the decisive factor is whether the parent application is still pending on the day the divisional application is filed. Since the pendency of an application is not a time limit, Rule 134 EPC does not apply to the filing of divisional applications. Thus, the information above on alternative filing options for first filings applies to divisional applications too, with the exception that divisional applications may only be filed at the EPO filing offices (Article 76(1) EPC).
Further details and examples regarding the scope of application of Rule 134 EPC are provided in the Guidelines for Examination in the EPO, E-VIII, 1.6.2.3.