4.2 Presenting your invention
4.2.11Unitary character of European patent applications and patents
The exceptions to this principle are as follows:
(a) If the EPO is informed of the existence of a prior right under Article 139(2), the European patent application or patent may, for such state or states, contain different claims and, if the examining division considers it necessary, different descriptions and drawings.
R. 138
GL H‑III, 4.1, 4.2
(b) If it is adjudged by a final decision that a third party is entitled to be granted a European patent in respect of only one part of the matter disclosed in the European patent application, the original European patent application must, for the designated states in which the decision was taken or recognised, contain claims, descriptions and drawings which, where necessary, are different from those for the other designated contracting states.
4.2.040National rights of earlier date do not form part of the state of the art for the purposes of the EPO's examination for patentability (see point 3.3.003, last paragraph).
GL H‑III, 4.4
However, during substantive examination (see point 5.4.019) or opposition proceedings (see point 5.5.005) you may, on your own initiative, submit separate claims for each designated contracting state in which an earlier national right exists, provided that you supply evidence of its existence to the examining or opposition division as appropriate. In such cases the examining or opposition division examines only the admissibility of the separate claims; it does not have to judge whether you have adequately limited the scope of your application in relation to the earlier national right. What it does examine, however, is whether the invention identified in the separate claims meets the patentability requirements of the EPC.