Deadlines

PCT = Month 31

The deadline for entering Regional Phase in Europe is 31 months from the earliest priority date, or from the International Filing Date if the PCT application does not claim priority.  If this deadline is missed, the Applicant may still enter the European regional phase within 2 months of issue by the EPO of the Notice of Loss of Rights upon payment of a 50% surcharge on the filing fees.

*If a deadline falls on a day when the European Patent Office is closed for business, the filing may be made on the next day when the Patent Office is open for business.

Absolute Novelty

Europe is an absolute novelty jurisdiction.  European patents may only be granted for inventions which have not been disclosed to the public before the filing date (or, if priority is claimed, the priority date) of the application, irrespective of whether the prior disclosure originates from a third party or from the applicant.  Hence, an application for a European patent, or a priority application, must be filed before any public disclosure of the invention by the applicant – there is no ‘grace period’ under European patent law.

European law does not automatically deem disclosure to take place when a product which embodies the invention is made available for sale.   The disclosure must be ‘enabling’.  However, any enabling disclosure, regardless of how or where in the world it is made or by whom (including by the inventor) is prejudicial to novelty.

First to File

Europe is a ‘first to file’ jurisdiction: the application with the earliest filing (or priority) date takes precedence over later-filed applications from third parties.  There is no determination of who was ‘first to invent’:  an early filing date can confer a crucial advantage.

In order to claim priority to a previously filed application that describes the invention, provisional or otherwise, the European patent application requesting priority must be filed in Europe within 12 months of the first filing.  A European application may request priority on multiple previously filed applications provided that the European application is filed within 12 months of the earliest filed application.  Priority can only be claimed to a prior application which includes an enabling disclosure for at least part of the invention.

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