3. Transfer of the European patent application 

A European patent application may be transferred for one or more of the designated contracting states.

Art. 72 is an autonomous provision which exclusively governs the formal requirements of such transfers. The EPO registers a transfer of rights in respect of a pending European patent application (see A‑IV, 1.1.1 and J 10/93) in the European Patent Register on request, upon fulfilment of the prerequisites of Rule 22. The registration of the transfer may be subject to the payment of an administrative fee under the conditions laid down by the President of the EPO pursuant to Rule 22(2). Where the request is filed via MyEPO Portfolio, no fee is due (see the decision of the President of the EPO dated 25 January 2024, OJ EPO 2024, A5). A fee is due for requests filed via other means, in which case, the request is deemed not to have been filed until the administrative fee has been paid (see A‑X, 2) The request is not deemed to have been filed until an administrative fee has been paid. The amount of the fee is determined by the latest schedule of fees and expenses of the EPO (see epo.org).

Where a fee is due and the request relates to multiple applications, a separate fee has to be paid for each application. Simultaneous payment for multiple applications is only possible using the batch functionality in Central Fee Payment (see OJ EPO 2022, A81). Where batch payment was attempted via other means, e.g. by editing the amount to be paid on EPO Form 1038 filed electronically, the transfer will be registered for the first application only and the overpayment will be refunded. Payment of the fee due in respect of each of the applications for which the batch payment failed will need to be effected again, which will lead to different dates of legal effect.

With effect from the entry into force of amended Rule 22(1) on 1 April 2024, the conditions under which payment of an administrative fee is due is laid down by the President of the EPO.

Rule 22 furthermore requires the production of documents providing evidence of such a transfer. Any kind of written evidence suitable for proving the transfer is admissible. This includes formal documentary proof such as the instrument of transfer itself (the original or a copy thereof) or other official documents or extracts thereof, provided that they immediately verify the transfer (J 12/00). As an autonomous provision, Art. 72 requires assignment documents to be signed by the parties to the contract that, for an assignment, the signatures of the parties appear on the documents submitted as evidence of the transfer. Assignment documents may bear handwritten, facsimile, text-string or digital signatures under the conditions specified by the EPO (see the decision of the President of the EPO dated 9 February 2024, OJ EPO 2024, A17, and the notice from the EPO dated 9 February 2024, OJ EPO 2024, A22). A facsimile signature is a reproduction of the party's signature. A text-string signature is a string of characters, preceded and followed by a forward slash (/), elected by the signatory to prove their identity and their intent to sign. Documents bearing a facsimile signature or a text-string signature may be filed either on paper or electronically using the EPO's electronic filing services. In addition, the EPO will accept digital signatures for example those using public key infrastructure (PKI) technology, including advanced and qualified electronic signatures within the meaning of the EU's eIDAS Regulation.

Where a digital signature is used, the document must be Assignment documents filed electronically (see A‑II, 1.1.1) may, instead of handwritten signatures, bear qualified electronic signatures (see notice from the EPO dated 22 October 2021; OJ EPO 2021, A86).

With effect from the entry into force of amended Rule 22(1) on 1 April 2024, electronic signatures as determined by the President of the EPO are accepted on assignment documents.

Where a document is signed on behalf of a legal person, only such persons as are entitled to sign by law, by the legal person's articles of association or equivalent or by a special mandate may do so. National law applies in that respect. In all cases, an indication of the signatory's entitlement to sign, e.g. his/her their position within the legal entity where the entitlement to sign results directly from such a position, is to be given. The contracting parties have to ensure that the signatories are duly authorised in accordance with the national law applicable to sign such a document. The EPO, however, reserves the right to request documentary proof of the signatory's authority to sign if the circumstances of a particular case necessitate this. In such cases, if the evidence presented is found to be unsatisfactory, the EPO informs the party requesting the transfer accordingly and invites them to remedy the stated deficiency within a given time limit.

As a general rule, the authorisation to represent a party in proceedings before the EPO within the meaning of Rule 152, be it an individual or a general authorisation, is not as such considered to empower the representative to enter into such a contract.

If the request complies with the requirements of Rule 22 Rule 22(1), the transfer is registered with the date on which the request, the required evidence or, where applicable, the fee has been received by the EPO, whichever is the latest. In case of a minor deficiency, i.e. if all requirements were present but not fulfilled completely (e.g. the request was signed but the name and/or position of the person signing were missing), once rectified the effective date is the date of receipt of the original request for registration.

On the above date, the transfer becomes effective vis-à-vis the EPO, i.e. from that date the newly registered applicant is entitled to exercise the right to the European patent application in proceedings before the EPO (Art. 60(3)). If the transfer was for certain designated states only, Art. 118 applies.

Once a transfer has been duly entered in the European Patent Register, the registration cannot be undone, even if it appears that one or more requirements were actually not fulfilled for reasons not apparent at the time when the transfer was registered by the EPO, e.g. where doubts arise later as to the entitlement of the person signing on behalf of one of the parties to enter such a transfer agreement (see decisions J 16/14 to J 22/14). The original status quo is no longer restored until the valid legal situation has been established. In the meantime, proceedings may have to be stayed under Rule 14 or 78 until it is clear who the legitimate applicant/proprietor is.