2.1 General 

Under Art. 61(1), a court or competent authority ("court") may by a final decision find that a person other than the registered applicant is entitled to the grant of a European patent. Provided that the European patent has not yet been granted, this third party may, within three months after the decision has become final, in respect of those contracting states designated in the European patent application in which the decision has been taken or recognised or has to be recognised on the basis of the Protocol on Recognition annexed to the European Patent Convention:

(i)prosecute the application as their own application in place of the applicant (see A‑IV, 2.4 and A-IV, 2.7)

(ii)file a new European patent application in respect of the same invention (see A‑IV, 2.5 and A-IV, 2.7) or

(iii)request that the application be refused (see A‑IV, 2.6 and A-IV, 2.7).

If the application is no longer pending due to its having been withdrawn, refused or being deemed withdrawn, the third party can still file a new European patent application in respect of the same invention, in accordance with Art. 61(1)(b) (see G 3/92).