Euro-PCT application

A Euro-PCT application is an international application filed under the Patent Cooperation Treaty in which the European Patent Office (EPO) is designated or elected with a view to obtaining a European patent. Article 153 of the European Patent Convention (EPC) treats it as a European patent application, the EPO acting as designated or elected Office. It thus combines the international phase of the PCT with a European phase that then follows the ordinary rules of the Convention.

Entry into the European phase

The applicant has thirty-one months from the priority date to enter the European phase. Within that period, the applicant must file a translation into one of the official languages of the EPO if the international application was published in another language, specify the documents on which the procedure is to be based, pay the filing fee, the designation fee and, where applicable, the search fee, and file the request for examination. Failing this, the application is deemed withdrawn, subject to further processing.

Supplementary European search and amendments

Where the EPO did not act as the authority responsible for the international search, it normally draws up a supplementary European search report. In all cases, at the start of the European phase it invites the applicant to amend the application or to respond to the written opinion issued during the international phase. That response is mandatory where the opinion was issued by the EPO itself, and the six-month period offers the first useful opportunity to adapt the claims to European requirements.

Specific effects of the Euro-PCT application

International publication takes the place of publication of the European patent application. Provisional protection is, however, only acquired from publication in an official language of the EPO. A Euro-PCT application forms part of the state of the art against later European applications only if the filing fee has been paid and any required translation filed. For an applicant targeting France, the Euro-PCT route is the only way to obtain protection there on the basis of an international application, since France has closed the national PCT route.

Key points

The Euro-PCT application makes it possible to defer the costs of the European procedure until thirty-one months after priority, while preserving the option of protection in all States party to the Convention. Entry into the European phase brings several acts together within a single period, and missing just one of them is enough to jeopardise the application. This step should be prepared several months in advance, by settling the translation, the set of claims and the choice of documents.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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