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Change of language of the proceedings is not possible

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Change of language of the proceedings is not possible

The EPO Enlarged Board of Appeal has decided that it is not possible to file a translation of the application into one of the two other official languages when entering the European regional phase.

In G 04/08 the Enlarged Board of Appeal of the European Patent Office (EPO) decided that, when an international patent application is filed and published in an official language of the EPO by virtue of the Patent Cooperation Treaty (PCT), it is not possible to file a translation of the application into one of the two other official languages when entering the European regional phase. As a consequence, the language of the proceedings before the EPO is fixed from the moment an international application is filed in an official language of the EPO.

In the case in question, an international patent application was filed in French under the PCT and was subsequently published in French. On entry into the European regional phase (EPO), the appointed English representative filed an English translation of the international application, with the intent that English would be the language of the proceedings. However, the English representative received official communications in French.

According to Article 14(3) EPC, the language of the proceedings shall be used in all proceedings before the EPO, meaning that all communications from the EPO will be in that language. The Enlarged Board”s decision reconfirms that, although any party may use any official language of the EPO in written proceedings (Rule 3(1) EPC), the EPO will be bound to the language of the proceedings. Moreover, any amendments of the application need to be filed in the language of the proceedings.

This also has an effect for French- or German-speaking applicants who file PCT applications in English (thereby, becoming prior art in the U.S.A. from the date of filing). As there is no possibility to change the language of the proceedings upon entry into the European regional phase, the applicants have consequently lost the advantage of having written proceedings in their native language.

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