5.1.2 Accorded date of filing and content of the application still subject to review 

The prior art considered by the examiner might comprise documents (European or international patent applications) for which the accorded date of filing and the content of the application on the filing date may still be under review before the EPO. This might be the case, for instance, when:

(i)a European patent application contains parts of the description and/or drawings filed under Rule 56 or (parts of) claims, description and/or drawings filed under Rule 56a, or

(ii)an international patent application contains elements or parts of the description, drawings or claims filed under Rule 20.5 PCT, Rule 20.5bis PCT or Rule 20.6 PCT.

The examiner checks whether a final decision on the accorded date of filing and on the content of the application on the filing date has already been taken before considering the documents as being state of the art under Art. 54(3). The content of the application determined according to Rules 56 EPC or Rule 56a EPC or Rules 20.5 PCT, Rule 20.5bis PCT or Rule 20.6 PCT is considered as the content of the application as filed within the meaning of Art. 54(3) EPC. Note that under Rule 56a(4) EPC and Rule 20.5bis(d) PCT, the erroneously filed application documents or parts remain in the application (see A‑II, 6.4 and PCT‑EPO Guidelines A‑II, 6.2).

If the date of filing and/or the content of the disclosure have/has not yet finally been determined, the examiner temporarily deals with the documents (if relevant for assessing the patentability of the claimed subject-matter) as if all application documents and parts thereof had been filed on the date of filing initially accorded to the application, revisiting the issue at a later point in time.