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Law & practice

Notice from the President of the European Patent Office dated 26 January 1996 concerning the priority conferring effect of the "US provisional application for patent"

OJ EPO 1996, 81

1. With effect from 8 June 1995 it has been possible to file a provisional patent application in the USA. The "provisional application for patent" provided for in 35 USC, section 111(b), allows applicants to file a provisional application with USPTO under simplified conditions. In order to establish an effective filing date, all that need be submitted are a description of the invention and the drawings necessary for an understanding of the invention.

2. The provisional application cannot as such lead to the grant of a patent as it is not examined and is deemed abandoned 12 months after filing. It does however give rise to a priority date for a subsequent, regular national application for the invention which is filed within 12 months of the date of filing of the provisional application with a reference to the provisional application (35 USC, section 119(e)).

3. Since the provisional application meets in substantive terms the requirements the EPC places on a duly filed national application in order to establish priority and because the subsequent fate of this filing is immaterial, the EPO, while acknowledging the independent decision-making competence of the EPO boards of appeal and the courts of the contracting states, recognises the provisional application for patent as giving rise to a right of priority within the meaning of Article 87(1) EPC.