4.1.2 Published international applications (WO) as "E" documents 

(a)According to Art. 158(1) EPC 1973, a conflicting PCT application that validly entered the European phase before 13 December 2007 and was retrieved as an "E" document in the search for a European application will constitute prior art within the meaning of Art. 54(3) and (4) EPC 1973 only if before 13 December 2007:

– the EPO has been designated in the international applicationit designates the EPO,

– where necessary, the applicant supplied to the EPO with a translation of the international application into an official EPO language and

– the applicant paid the EPO's national basic fee (the same as the filing fee) under Rule 107(1)(c) EPC 1973 and the EPO's designation fees under Rule 107(1)(d) EPC 1973.

(b)According to Rule 165, a A conflicting PCT application that entered the European phase on or after 13 December 2007 and was retrieved as an "E" document in the search for a European application will constitute prior art within the meaning of Art. 54(3) only if according to Rule 165 on or after 13 December 2007 (see G‑IV, 5.2):

– the EPO has been designated in the international applicationit designates the EPO,

– where necessary, the applicant has supplied to the EPO with a translation of the international application into an official EPO language according to required under Art. 153(4) and Rule 159(1)(a) and

– the applicant has paid the filing fee under Rule 159(1)(c).

Even if it is not possible to verify any of the above requirements based on the published international (WO) application (in particular because the 31-month time limit for meeting them under Art. 22 PCT and Art. 39 PCT has not yet expired for the international application at the time of the search), the application should still be treated as potentially relevant under Art. 54(3) and so be cited as an "E" document in the search report (see also B‑X, 9.2.6).