7.2.2 Transitional provisions

According to Art. 1, No. 3 of the decision of the Administrative Council of 28 June 2001 under Art. 7 of the Act revising the EPC of 29 November 2000, revised Art. 54(5) EPC is applicable to European patent applications pending at the time of the EPC 2000's entry into force, insofar as a decision on the grant of the patent has not yet been taken (see decision T 1127/05, T 406/06, T 1599/06; see also OJ SE 4/2007).

Art. 54(5) EPC was introduced into the Convention as part of the revision of the EPC. Under the transitional provisions for EPC 2000, Art. 54(5) EPC shall apply to pending applications in so far as a decision on grant has not been taken (T 1599/06 and T 1127/05).

In T 1599/06 the board considered it already necessary to take the new situation under the EPC 2000 into account when examining the claims at issue. Claim 1 was interpreted as a product claim for a second medical use in accordance with Art. 54(5) EPC (see also T 385/07, a case involving similar circumstances).