4.1.1 Published European patent applications as "E" documents 

(a)European patent applications filed between 1 July 1997 and 12 December 2007 were published with all EPC contracting states automatically designated (OJ EPO 1997, 160) because the designation fees were not payable until after publication (Art. 79(2) EPC 1973). However, the automatic designations made on publication were retroactively invalidated under Rule 23a EPC 1973 for the purposes of Art. 54(3) and (4) EPC 1973 if the relevant designation fees were not then paid on time.

This means that, when a European patent application is found which is potentially relevant as an "E" document because it contains novelty-destroying subject-matter and claims earlier priority rights, and it was filed after the rule on the designation of states changed (i.e. as from 1 July 1997) but before the entry into force of EPC 2000, it is not immediately apparent from the published document which contracting states were validly designated. Nevertheless, such an application is always cited as an "E" document on the assumption that it has validly designated states in common with the searched application.

(b)Any European patent application filed on or after 13 December 2007 which has an earlier filing date than the searched application and was published on or after that application's filing date is potentially state of the art for the purposes of Art. 54(3), regardless of whether the same states are designated.