Rights conferred by a European patent application after publication


According to Art. 67 par. 1 of the European Patent Convention (EPC) a European patent application shall, from the date of its publication, provisionally confer upon the applicant the protection provided for by Article 64 EPC  (i.e. conferring in each Contracting State the same rights as would be conferred by a national patent granted) , in the Contracting States designated in the application.



Any Contracting State may prescribe that a European patent application shall not confer such protection as is conferred by Article 64 EPC. However, the protection attached to the publication of the European patent application may not be less than that which the laws of the State concerned attach to the compulsory publication of unexamined national patent applications. In any event, each State shall ensure at least that, from the date of publication of a European patent application, the applicant can claim compensation reasonable in the circumstances from any person who has used the invention in that State in circumstances where that person would be liable under national law for infringement of a national patent.


Any Contracting State which does not have as an official language the language of the proceedings may prescribe that provisional protection in accordance with paragraphs 1 and 2 above shall not be effective until such time as a translation of the claims in one of its official languages at the option of the applicant or, where that State has prescribed the use of one specific official language, in that language:


has been made available to the public in the manner prescribed by national law, or 


has been communicated to the person using the invention in the said State. 


The European patent application shall be deemed never to have had the effects set out in paragraphs 1 and 2  of this article when it has been withdrawn, deemed to be withdrawn or finally refused. The same shall apply in respect of the effects of the European patent application in a Contracting State the designation of which is withdrawn or deemed to be withdrawn.


Prepared by European Patent Registration and Consulting Services GmbH