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Newsletters and Bulletins / February 2002 / European Patent Office

European Patent Office (EPO) - Application of the Grace Period

The European Patent Convention provides for a six month grace period within which an application may be validly filed after a publication of an invention in certain limited circumstances. The most important of such circumstances is where there has been has been an evident abuse in relation to the applicant or his legal predecessor. A question which had hitherto been unanswered, however, was whether the six month grace period ran back from the actual filing date of the European application or from any claimed priority date. The issue came to the Enlarged Board of Appeals in Six month period/University Patents. After considering inter alia decisions by the German and Swiss courts and the papers and discussions leading up to the adoption of the European Patent Convention, the Enlarged Board held that there was no reason to depart form the most natural reading of the language of the relevant provision "six months preceding the filing of the European patent application" and so held that in order to take advantage of the grace period it was necessary that the actual European patent application be filed within six months of any relevant publication. It was not sufficient that an application be filed elsewhere within this six month period and that a European application subsequently claimed priority from it.


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