Published European applications as "E" documents
For European applications filed between 1 July 1997 and 12 December 2007, since the designation fees for European applications are paid after publication of the application (Art. 79(2) EPC 1973
), the application is published with all EPC contracting states automatically designated (OJ EPO 1997, 160). However, the automatic designations made on publication of a European application are retroactively invalidated according to Rule 23a EPC 1973
for the purposes of Art. 54(3)
and (4) EPC 1973
if the relevant designation fees are not paid on time.
This means that when a European application is retrieved which is potentially relevant as an "E" document by virtue of its novelty-destroying subject-matter and earlier priority rights, and this document is filed after the change in the rule on the designation of states (which happened on 1 July 1997) and before the entry into force of EPC 2000, it is not immediately recognisable from the published document which contracting states have been validly designated. Consequently, this document is always cited as an "E" document (i.e. assuming that it shares validly designated states in common with the application being searched).
For European patent applications filed on or after 13 December 2007, any European patent application having an earlier filing date and published on or after the date of filing of the application under examination is considered to be state of the art for the purposes of Art. 54(3)
, regardless of the commonly designated states.