7.1. Legal provisions

Under Art. 79(1) EPC all the contracting states which are party to the EPC at the time of filing of the patent application are deemed to be designated in the request for grant of a European patent. This is different from the situation under the EPC 1973, where contracting states had to be positively designated in the request for grant. This practice caused problems since, in principle, a later designation made after the filing date of the European patent application was inadmissible. Applicants continue to have the option of withdrawing designations pursuant to Art. 79(3) EPC.

Under Art. 79(2) EPC the designation of a contracting state may be subject to the payment of a designation fee (under the EPC 1973 it was stated, 'The designation of a Contracting State shall be subject to the payment of the designation fee.' – emphasis added). Since 1.4.2009, a flat designation fee has been payable for one or more contracting states designated (Art. 2(1) item 3 RFees).

The time limit for the payment of designation fees is within six months of the date on which the European Patent Bulletin mentions the publication of the European search report (R. 39 EPC, formerly Art. 79(2) EPC 1973).

The revised Art. 79 EPC is applicable to all European patent applications filed on or after 13.12.2007.

For case law on Art. 79(2) EPC 1973 (as in force until 30.6.1997), please refer to the "Case Law of the Boards of Appeal of the European Patent Edition", 5th Edition 2006, VII.A.4.1 "Article 79(2) EPC (old version)".