Guidelines for Examination in the European Patent Office

The Guidelines for Examination in the European Patent Office (or, for short, the EPO Guidelines) are general instructions, for the examiners working at the European Patent Office (EPO) as well as for the parties interacting with the EPO,[notes 1] on the practice and procedure at the EPO in the various aspects of the prosecution of European patent applications and European patents. The Guidelines have been adopted, effective as at 1 June 1978, by the President of the EPO in accordance with Article 10(2)(a) EPC.[1][2]

Structure

Since June 2012,[3] the Guidelines comprise eight parts, relating respectively to the formalities examination (Part A), the search (Part B), the procedural aspects of substantive examination (Part C), the opposition and limitation/revocation procedures (Part D), general procedural matters (Part E), the European patent application (Part F), patentability (Part G), and the amendments and corrections (Part H).

Revisions

The Guidelines are revised annually.[4] Until 2019, the revised editions of the Guidelines were published annually on 1 November. No revised edition of the Guidelines was published in 2020, and, since then, the revised editions are published annually at the beginning of March.[5]

According to several decisions of the Boards of Appeal of the EPO, the Guidelines are only general instructions intended to cover normal occurrences. An Examining Division[notes 2], for example, can depart from them provided it acts in accordance with the European Patent Convention (EPC). "It [i]s normally desirable for examining divisions to act in accordance with the Guidelines, but (...) these [a]re not rules of law, so failure to follow a procedure set out in them [i]s not in itself a substantial procedural violation".[6][7] Nevertheless, the users of the European patent system may reasonably expect, in accordance with the established "principle of the protection of legitimate expectations" (also referred to as "principle of good faith"), that the Guidelines will be followed by the departments of first instance of the EPO.[8]

It is also settled case law that the Guidelines are not binding on the Boards of Appeal.[9] This is "an important factor in the judicial independence of the boards of appeal" (Article 23(3) EPC).[9]

PCT-EPO Guidelines

Since 2015, separate guidelines, namely the "Guidelines for Search and Examination at the EPO as PCT authority", or "PCT-EPO Guidelines", are available to cover "the practice and procedure to be followed in various aspects of the handling of international applications before the EPO as International Searching Authority and International Preliminary Examining Authority."[10] These Guidelines entered into force on 1 November 2015.[10]

See also

Notes

  1. ^ Including the applicants, patentees, opponents, third parties, and their representatives.
  2. ^ The Examining Divisions are responsible for the examination of European patent applications, Article 18(1) EPC.

References

  1. ^ Guidelines, General Part, 1. Preliminary remarks, first paragraph.
  2. ^ Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (9th edition, July 2019), iii.w : "Guidelines for Examination in the European Patent Office"
  3. ^ "Notice from the European Patent Office dated 2 May 2012 concerning revision of the Guidelines for Examination in the European Patent Office". EPO. 20 June 2012. Archived from the original on 16 August 2012. Retrieved June 29, 2012.
  4. ^ "Notice from the European Patent Office dated 28 July 2015 concerning updating of the Guidelines for Examination in the European Patent Office". EPO Official Journal. European Patent Office. 30 September 2015. p. A78. Retrieved 4 October 2015.
  5. ^ "Information concerning the publication of the next edition of the EPO Guidelines, OJ 2020, A108". epo.org. European Patent Office. 30 September 2020. Retrieved 19 February 2021.
  6. ^ Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (9th edition, July 2019), iii.w.2 : "Guidelines binding (in principle) on departments of first instance".
  7. ^ Decision T 162/82 of 20 June 1987, Reasons 9 (OJ EPO 1987, 533).
  8. ^ Decision T 1607/08 of 13 June 2012, Reasons 2 to 2.2.
  9. ^ a b Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (9th edition, July 2019), iii.w.1 : "Guidelines not binding on boards"
  10. ^ a b "Notice from the European Patent Office dated 21 July 2015 concerning the publication of Guidelines for Search and Examination at the European Patent Office as PCT Authority (PCT-EPO Guidelines)". EPO Official Journal. European Patent Office. 30 September 2015. p. A73. Retrieved 4 October 2015.

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