EPO express

When is a filing date established ?

Filing date of a first application

Article 4 A (3) Paris Convention Unofficial title: Fate of first filing

By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.

The EPO has integrated this Paris Convention requirement almost the same, but with some modern wording;

Article 87 EPC (3)

By a regular national filing is meant any filing that is sufficient to establish the date on which the application was filed, whatever may be the outcome of the application.

A regular national filing does not require that you continued with your first application. Even if your abandoned your first application or your first application was rejected from the national office you are still entitled to use the abandoned application to establish your priority right. The only condition is that the national requirements were met to establish a filing date. These conditions however, may differ from country to country.

In Germany, for example, Article 35 Patent Law only requires that the German Patent and Trademark Office received :

the name of the applicant
a request to obtain a patent, which includes a short and accurate indication of the invention
something that looks like a description

Please note that the application did not need ot have any claims or information about the inventor. It also does not matter if you failed to pay the application fee.

Since several years now you can file a patent application in Germanu in any language. In order to pursuit this application you need to file a translation into German within 3 months, or if the language was English or French within 12 months. For some time the translation requirement was a prerequisite to obtain a filing date. This is no longer the case.

The EPC (European Patent Convention) has implemented a similar rule, which gives the preconditions under which a filing date is granted:

Rule 40 EPC - Date of filing

The date of filing of a European patent application shall be the date on which the documents filed by the applicant contain:

an indication that a European patent is sought;
information identifying the applicant or allowing the applicant to be contacted; and
a description or reference to a previously filed application.

A reference to a previously filed application under paragraph 1(c) shall state the filing date and number of that application and the Office with which it was filed. Such reference shall indicate that it replaces the description and any drawings.
Where the application contains a reference under paragraph 2, a certified copy of the previously filed application shall be filed within two months of filing the application. Where the previously filed application is not in an official language of the European Patent Office, a translation thereof in one of these languages shall be filed within the same period. Rule 53, paragraph 2, shall apply mutatis mutandis.

Disclaimer / Warning

As you can see from the example of Germany the fact wether or not your first filing successfully established a filing date can be quite tricky. In this simplified procedure it is your responsibility to check with your local patent attorney who filed your priority application, that this filing qualifies as a priority application. A good approach is that you request a so-called priority document from your national office. This may give a presumption that your first filing was given a filing date.

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