5.4. Subsequent filing of missing parts of the description or missing drawings (Rule 56 EPC)
5.4.1 Legal provisions
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
In the context of the system as a whole, R. 56 EPC relates to Art. 80 EPC (date of filing) (J 3/06). If the examination under Art. 90 EPC to determine whether the application satisfies the requirements for the accordance of a date of filing reveals that parts of the description, or drawings, appear to be missing, the EPO invites the applicant to file the missing parts within two months (R. 56(1) EPC).
Where the applicant files missing parts of the description or missing drawings within two months of the date of filing or of an invitation from the EPO to file the missing parts, the application is re-dated to the date on which the missing parts were filed. However, if the application claims priority, the missing parts of the description or the missing drawings are completely contained in the earlier application and all the requirements of R. 56(3) EPC are fulfilled, the application is not re-dated but retains the date on which the requirements laid down in R. 40(1) EPC were fulfilled (R. 56(3) EPC). R. 56(3) EPC implements Art. 5 Patent Law Treaty (PLT). It is based on the concept introduced in the EPC 2000 whereby the documents required for the accordance of a date of filing do not, under certain circumstances, immediately have to be physically present. Instead, they can be introduced into the proceedings by being contained in another application (J 10/07).
Even though it is not expressly stipulated in R. 56 EPC, it follows from the wording of R. 56(2), first sentence, EPC that applicants may also file missing parts of the description or missing drawings of their own motion. This approach is in line with the legislator's intention, as expressed in the travaux préparatoires; see T 1963/17.
R. 56 EPC applies only to applications filed after the entry into force of the EPC 2000 (J 3/06, OJ 2009, 170, and J 10/07). Its counterpart under the EPC 1973, R. 43 EPC 1973, referred only to missing drawings.
For more on the correction of erroneously filed application documents or parts for applications filed on or after 1 November 2022, see new R. 56a EPC (IV.A.5.6).