5.6. Change of date of filing

The Legal Board of Appeal held in J 14/90 (OJ 1992, 505) that re-dating an application could not be justified on the grounds that the later date would permit the granting of a European patent for a new Contracting State. The designation of a state formed part of the request for grant of a patent, and hence belonged to the documents making up a patent application, which meant that in principle there was no reason why the filing date of an application should not be changed to the date on which a further state was designated. What was lacking were the necessary legislative provisions which would make this possible. In the case before the board there were no special circumstances, as had been the case with decision J 5/89. On the contrary the public interest and the need for consistency ruled out a re-dating.

In J 5/89 the Legal Board of Appeal had stated that it was clear that Art. 80 EPC set a date before which a date of filing could not be accorded to an application, but it did not follow that an application could not be given a later filing date with the consent of the applicant, provided that there was no detriment to the public interest, in circumstances in which the applicant had been misled by the EPO into not filing a new application entitled to that later filing date. See also chapter III.A. "The principle of the protection of legitimate expectations".

J 18/90 (OJ 1992, 511) followed J 14/90 (OJ 1992, 505) in holding that the express designation of a new Contracting State in a European patent application shortly before entry into force of the EPC for that state was no justification for deferring the filing date until the date of entry into force. However, the Legal Board added in J 18/90 that such express designation might, after checking with the applicant, be interpreted as meaning that the applicant did not want a filing date earlier than the date on which the EPC entered into force for the state concerned.

In T 683/06 the appeal had been lodged against a decision of the examining division to refuse a divisional application. The parent application had been sent by fax during the night. Some of the documents had arrived before midnight, some of them after midnight. According to the examining division's contested decision, the divisional application extended beyond the content of the parent application (Art. 76(1) EPC) because the claims in the divisional application were supported only by those parts of the documents for the parent application which had arrived by fax after midnight and in the light of the applicant's decision in favour of the earlier filing date did not belong to the parent application.

In its main request, the appellant sought to have the date after midnight recognised as the parent application's date of filing. However, the EPC makes no provision for a filing date once fixed to be changed subsequently. Only R. 56 EPC enables the filing date to be moved back if missing drawings or parts of the description are filed later. The correction of errors in filed documents in accordance with R. 139 EPC may also result in a change of filing date. But the case in point involved no such correction. Nor was a correction possible under R. 140 EPC.