The grant procedure before the European Patent Office (EPO) is an ex parte, administrative procedure, which includes the filing of a European patent application, the examination of formalities, the establishment of a search report, the publication of the application, its substantive examination, and the grant of a patent, or the refusal of the application, in accordance with the legal provisions of the European Patent Convention (EPC). The grant procedure is carried out by the EPO under the supervision of the Administrative Council of the European Patent Organisation. The patents granted in accordance with the EPC are called European patents.

In other words, the grant procedure before the EPO is the procedure leading to the grant of a European patent or to the refusal to grant a European patent. The procedure starts with the filing of an application and ends with the grant of a European patent or the refusal of the patent application by the EPO, or the withdrawal of the application by the applicant, or its deemed withdrawal. The prosecution of European patent applications until grant typically takes several years.Richard Howson, , Journal of Intellectual Property Law & Practice, 2007 2(3):170-173; doi:10.1093/jiplp/jpl237

Main procedural steps Filing

European patent applications can be filed at the EPO at Munich, Germany, at The Hague, Netherlands, at Berlin, Germany,Decision of the President of the European Patent Office dated 10 May 1989 on the setting up of a Filing Office in the Berlin sub-office of the European Patent Office, OJ 1989, 218. or "if the law of a Contracting State so permits, at the central industrial property office or other competent authority of that State". This latter provision is important in some countries. For example, in the United Kingdom, it used to be required to obtain clearance for all inventions but now it is only prohibited for a UK resident to file an overseas patent application for inventions in certain sensitive technical areas without obtaining clearance through the United Kingdom Intellectual Property Office first.United Kingdom Patents Act 1977, ss 22-23: Security and safety. European patent applications cannot be validly filed at the EPO in Vienna, Austria.Notice from the European Patent Office dated 4 March 1992 concerning the Vienna sub-office, OJ 1992, 183, Important Notice.

Within one month after the filing of an application, a filing fee and a search fee are due. Additional fees may also be due depending on the size of the application and the number of claims. Namely, if the application comprises more than 35 pages, an additional fee is due (of 16 Euros, as of August 2021) for the 36th and each subsequent page.Article 2.1a of the Rules relating to Fees. Furthermore, if the application contains more than fifteen claims at the time of filing, claim fees are due. (previously ) As of August 2021, a claims fee of 245 Euros is due for the 16th and each subsequent claim up to the limit of 50, and a claims fee of 610 Euros for the 51st and each subsequent claim.Article 2.15 of the Rules relating to Fees.

European patent applications may be filed in any language, in accordance with Article 5 of the Patent Law Treaty (PLT).; : "Admissible languages on filing; General": "European patent applications can be filed in any language."; Special edition No. 4 OJ EPO 2007, p. 14: "The revised Article 14(2) EPC provides that an application must be filed in one of the EPO official languages, or be translated into one of these languages (if the application has been filed in another language). The words "any other language" imply that an application may be filed in any language, in accordance with Article 5 PLT which states that, for the purpose of obtaining a filing date, a description of the invention in a language of the applicant's choice must be accepted." However, if an application is filed in a language other than one of the three official languages, namely English, French and German, a translation must be filed into one of the official languages within two months from the date of filing.; ; ; : "However, if filed in a language other than an official language of the EPO (English, French or German), a translation into one of the official languages must be filed within two months of the date of filing (Rule 6(1))." The official language of filing (or of the translation) becomes the "language of proceedings" and is used by the EPO for communications.; : "Language of the proceedings": "The official language of the EPO (English, French or German) in which the application is filed, or into which it is subsequently translated, constitutes the "language of the proceedings". The language of the proceedings is the only language used by EPO departments in written proceedings on that application (G 4/08)."

Formalities examination The examination of whether the requirements for the accordance of a filing dateSee and . and other formal requirements are satisfied is carried out by the EPO in accordance with . If a date of filing cannot be accorded, the application is not dealt with as a European patent application. If the European patent application has been accorded a date of filing, but if there are other formal deficiencies, the applicant is offered an opportunity to correct these deficiencies. If the deficiencies are not corrected, the European patent application is refused, unless a different legal consequence applies.

Oral proceedings may exceptionally take place before the Receiving Section,Decision T 689/05 of 7 September 2010, point 5.17, referring notably to and . to give an opportunity to the applicant to be heard on an issue involving formality requirements.

Publication and provisional rights A European patent application is published as soon as possible "after the expiry of a period of eighteen months from the date of filing or, if priority has been claimed, from the date of priority", or "at the request of the applicant, before the expiry of that period". While early publication of a European patent application can be requested, there are no provisions in the EPC which would permit any delaying of the publication.See for instance Decision J 2/08 (27 May 2009) of the Legal Board of Appeal of the EPO, Reasons 60 and 61. There is indeed an overriding public interest in the timely publication of the application.

As from its publication, a European patent application may confer to the applicant some provisional rights in the contracting states designated in the application. These rights include at least the right for the applicant to "claim compensation reasonable in the circumstances from any person who has used the invention in that State in circumstances where that person would be liable under national law for infringement of a national patent." In relation to some contracting states however, a translation of the claims is required for the provisional rights to come into effect.

Search The Search Divisions of the EPO establish search reports, named "European search reports", on the basis of the claims, "with due regard to the description and any drawings". The European search report established for a patent application is transmitted to the applicant together with copies of any cited documents. "The search is an essential element of the grant procedure, being designed to identify prior art relevant to the application. The intention is to make it possible to determine, on the basis of the documents mentioned in the search report, whether and to what extent the invention is patentable (...). Knowledge of the prior art forms the basis for examination of the application by the examining divisions. It is also important for applicants, giving them a basis for deciding whether to continue prosecuting their applications and have them examined. Lastly, it is also important for the public and especially for competitors, enabling them to gain an idea of the scope of any protection that might be granted."Board of Appeal of the EPO, Decision of Technical Board of Appeal 3.5.01 dated 20 October 2006 T 1242/04 – 3.5.01, Reasons 8.2, OJ EPO 7/2007, p. 421

In exceptional cases, a declaration that no search report can be performed is issued, for example because carrying a meaningful search is not considered possible by the Search Division.: "No meaningful search possible"

Before the search, communications between the search division and the applicant were not foreseen prior to April 1, 2010. However, under new Rules 62a and 63 EPC, Decision of the Administrative Council of 25 March 2009 amending the Implementing Regulations to the European Patent Convention (CA/D 3/09), Article 2(1). if there are more than one independent claim per claim category (and if the provisions of are considered not to be met) or if the search division considers that it is impossible to carry out a meaningful search based on the subject-matter claimed, communications between the search division and the applicant are possible.Decision of the Admin. Council, CA/D 3/09, Articles 1.1 and 1.2. Under however, no amendments to the application can be made before the search "unless otherwise provided".

Along with the search report, a search opinion is also established. The search opinion and the search report form together the so-called extended European search report., see title Before April 1, 2010, a response to the search opinion was optional.EPO web site, Notice from the European Patent Office dated 15 October 2009 concerning amendments to the Implementing Regulations to the European Patent Convention (EPC) , 15 October 2009, point 5.1.1. Currently however, under new Rule 70a EPC, a reply to the search opinion is mandatory,Decision of the Admin. Council, CA/D 3/09, Articles 1.5. within six months "after the date on which the European Patent Bulletin mentions the publication of the European search report" (which is also the time limit for requesting examination).Decision of the Admin. Council, CA/D 3/09, Articles 1.5. and . If no reply is filed to the search opinion, the application is deemed to be withdrawn.New Rule 70a(3) EPC. The search opinion is therefore a conventional office action with a given time period to respond.

Designation of States and examination request All the Contracting States party to the EPC at the time of filing of a European patent application are deemed to be designated in the request for grant of a European patent, i.e. upon filing of the application. A flat designation fee must then be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report. and

Under and , an examination request must also be made within six months from the date on which the European Patent Bulletin mentions the publication of the European search report. The examination fee is also due at that time. The examination request may not be withdrawn (although the application may be withdrawn at any time). If no examination request is made, the application is deemed to be withdrawn.

Substantive examination

The substantive examination of European patent applications includes the examination of patentability of the claimed invention, i.e. whether the invention is not excluded as unpatentable subject-matter by policy, and whether the invention is new, involves an inventive step, and is susceptible of industrial application. In addition, the invention must be sufficiently disclosed in the application, and the claims must be clear and concise.