III.A Rights conferred by a European patent application

Under Article 67(1) EPC, from the date of its publication a European patent application provisionally confers on the applicant such protection as is conferred by Article 64 EPC in the contracting states designated in the application as published, i.e. the same rights as would be conferred by a national patent granted in those states.

Pursuant to Article 67(2), however, contracting states may prescribe that a European patent application does not confer the protection referred to in Article 64 EPC. The protection attached to the publication of the European patent application may not, though, be less than that which would result from publication of an unexamined national patent application. The applicant must at least be given the right to claim compensation reasonable in the circumstances from an unauthorised user.

A further exception to the basic rule in Article 67(1) is laid down in Article 67(3) regarding the date from which provisional protection is effective.

Under that provision any contracting state which does not have as an official language the language of the proceedings may prescribe that provisional protection shall not be effective until such time as a translation of the claims in one of its official languages at the option of the applicant or, where that state has prescribed the use of one specific official language, in that language:

(a) has been made available to the public in the manner prescribed by national law, or

(b) has been communicated to the person using the invention in the said state.

No time limits are prescribed for filing the above-mentioned translations in the contracting states: provisional protection in the individual contracting states becomes effective only when the conditions referred to in Article 67(3) EPC have been fulfilled.

The following table also shows for the extension and validation states what rights are conferred by a European patent application and what translation requirements have to be met to obtain provisional protection after its publication under national law.