General remarks 

In certain circumstances, before a patent has been granted on a particular application, it may be adjudged as a result of a final decision of a national court that a person other than the applicant is entitled to the grant of a patent thereon. In this event this third party may either:

prosecute the application as their own application in place of the applicant; 
file a new European patent application in respect of the same invention; or 
request that the application be refused. 

If the first of these options is adopted, the third party becomes the applicant in place of the former applicant and the prosecution of the application is continued from the position at which it was interrupted (see also A‑IV, 2).

If, however, the third party files a new application under Art. 61(1)(b), the provisions of Art. 76(1) apply to this new application mutatis mutandis. This means that the new application is treated as though it were a divisional application i.e. it takes the date of filing and the benefit of any priority right of the original application (see also A‑IV, 1.2). The examiner must therefore ensure that the subject-matter content of the new application does not extend beyond the content of the original application as filed. The original application is deemed to be withdrawn on the date of filing of the new application for the designated states concerned.

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