Under Rule 32(1)(a) and Rule 32(1)(b), until the date on which the technical preparations for publication of the application are deemed to have been completed, the applicant may inform the EPO that, until the publication of the mention of the grant of the European patent or, where applicable, for twenty years from the date of filing if the application has been refused or withdrawn or is deemed to be withdrawn, the availability referred to in Rule 33 is to be effected only by the issue of a sample to an independent expert nominated by the requester.
The above communication must take the form of a written declaration addressed to the EPO. This declaration may not be contained in the description and the claims of the European patent application, but may be given in the appropriate section of the request for grant form (EPO Form 1001).
If the declaration is admissible, it is mentioned on the front page when the European patent application is published (see also A‑VI, 1.3).
For Euro-PCT applications published in the international phase in an official language of the EPO, the applicant must request the expert solution to the International Bureau before completion of the technical preparations for international publication, preferably using Form PCT/RO/134 (see the Notice from the EPO dated 7 July 2010, OJ EPO 2010, 498). For Euro-PCT applications not published in the international phase in an official language of the EPO, the applicant may request the expert solution under Rule 32(1) before completion of the technical preparations for publication of the translation of the international application required under Rule 159(1)(a) (see the above-mentioned Notice from the EPO).
If the applicant duly informs the EPO under Rule 32(1), the biological material is issued only to an independent expert nominated by the requester. The requirements and obligations applying to experts are laid down by the President of the EPO and are deemed to be fulfilled by signing the relevant declaration on a dedicated form provided by the EPO (see the Decision of the President of the EPO dated 10 July 2017, OJ EPO 2017, A60, and the Notice from the EPO dated 10 July 2017, OJ EPO 2017, A61). Expert nominations must be accompanied by a declaration whereby the experts undertake to comply with the pertinent requirements and obligations and that they know of no circumstances which might give rise to justified doubts as to their independence or which might conflict in any other way with their function as expert.