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Stolen invention

· EPO,Non-entitled person,right to a patent

In January 2018, Mr X, who has his residence in Germany, filed the European patent application EP1 for subject-matter A without claiming priority. EP1 was withdrawn in May 2018. In November 2018 subject-matter A was disclosed in a scientific article.


Ms Y, who has her residence in Italy, recently learned about the filing of EP1. Ms Y can prove that Mr X has stolen her invention and that in fact she is entitled to the grant of a patent for subject-matter A. Ms Y wants to have patent protection for subject-matter A through the EPO.


Is it still possible? if so which steps must she take? and in which contracting states can she obtain protection?

Proposed reply

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Yes ! Ms Y may obtain a protection for A.

First Ms Y has to obtain a decision recognizing her right to entitlement.

Mr X has his residence in Germany. Therefore, according to Article 2 of the Protocol on Recognition, proceedings must be brought against him in a German court.

Since EP1 has not been granted, in accordance with Rule 16(1)(b)EPC, Ms Y may avail herself of the remedies under Article 61(1) EPC.

Because EP1 is no longer pending, Ms Y should file a new application under Article 61(1)(b) EPC. According to G3/92, EP1 does not have to be pending for a new application to be filed.

The new application should be filed no later than three months after the decision recognising that Ms Y is entitled has become final, Rule 16(1)(a) EPC.

Article 76(1) EPC applies mutatis mutandis to the new application, Article 61(2) EPC.

Therefore, the new application shall be deemed to have been filed on the date of filing of EP1 in January 2013.

This precedes the publication of the scientific article in July 2013. Hence, this publication will not be prior art under Article 54(2) EPC for subject-matter A.

For the new application, the filing fee and search fee are to be paid within 1 month of filing, Rule 17(2) EPC.

According to Article 9 of the Protocol on Recognition, final decisions given in any Contracting State on the right to the grant of a European patent, shall be recognised in the other Contracting States. Therefore, the final decision of the German court shall be recognised in the other Contracting States.

In accordance with Article 79(1) EPC, all the Contracting States were deemed to be designated in EP1. Therefore, the new application can be filed for all Contracting States, Rule 16(2) EPC.

This proposed reply is not a legal opinion and does not engage the responsibility of Cabinet Novitech and should not replace the consultation of a Patent Attorney.

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