Patents Act, 1992

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Effect of filing application for European patent.

120.—(1) (a) An application for a European patent designating the State and having a date of filing under the European Patent Convention shall be treated for the purposes of the provisions of this Act specified in subsection (2) as an application for a patent under this Act having the said date as its date of filing under this Act.

(b) This Act shall apply to an application described in paragraph (a) of this subsection subject to the modifications specified in subsection (3).

(2) The provisions of this Act referred to in subsection (1) are sections 11 (3), 25 , 26 , 27 , 44 , 45 , 46 , 55 , 56 , 62 , 76 , 77 , 78 , 79 , 80 , 83 , 84 and 85 together with section 17 (3) in so far, and only in so far, as it provides for the making of a request to and a finding by the Controller and section 22 in so far as it restricts the application of section 11 (3).

(3) The modifications referred to in subsection (1) are the following:

(a) any declaration of priority made in connection with the application under the European Patent Convention shall be treated for the purposes of this Act as a declaration of priority under section 26 (1);

(b) where a period of time relevant to priority is extended under the said convention, the reference in section 25 (1) shall in relation to the application be regarded as being a reference to a period equal to the period as so extended;

(c) where the date of filing an application is re-dated under that convention to a later date, that date shall be so treated as the date of filing the application;

(d) the application, if published in accordance with the said convention, shall, subject to subsection (6), be treated as having been so published under section 28 ;

(e) any designation of the inventor under the said convention or any statement under it indicating the origin of the right to a European patent shall be treated for the purposes of section 17 (3) as a statement filed under section 17 (2);

(f) registration of the application in the Register of European Patents shall be treated as registration in the register;

(g) the provisions of section 35 shall not apply to such an application.

(4) Subsections (1), (2) and (3) shall cease to apply to an application for a European patent designating the State when the application is refused or withdrawn or deemed to be withdrawn, or the designation of the State in the application is withdrawn or deemed to be withdrawn, but if the rights of the applicant are re-established under the European Patent Convention, subsections (1), (2) and (3) shall, as from the re-establishment of those rights, again apply to the application; provided, however, that the occurrence of an event of withdrawal or refusal referred to shall not affect the continued operation of section 11 (3) in relation to matter contained in an application for a European patent designating the State which by virtue of that provision has become part of the state of the art as regards other inventions.

(5) Where between the cesser, by virtue of subsection (4), of subsections (1), (2) and (3) as regards an application for a European patent and the re-establishment of the rights of the applicant, a person begins in good faith to do an act which would, apart from section 77 , constitute an infringement of the application if subsections (1), (2) and (3) then applied, or makes in good faith effective and serious preparations to do such an act, he shall have the same protection as if an order had been made under section 37 (7).

(6) An application for a European patent designating the State published by the European Patent Office under the European Patent Convention in French or German shall be treated for the purposes of section 56 as published under section 28 when a translation in English of the claims of the application has been filed at and published by the Office and the prescribed fee has been paid, but an applicant may bring proceedings by virtue of section 56 in respect of an act mentioned in that section which is done before publication of that translation if, but only if, before the doing of that act he has sent by post or delivered to the person alleged to have done the act, a translation in English of the said claims.

(7) An application for a European patent may be filed at the Office. This provision shall not apply in respect of an application which is a European divisional application under the European Patent Convention.