Article 115 EPC enables third parties to present observations concerning the patentability of the invention to which a European patent application or patent relates. There are no fees for presenting such observations.
The filing of well-structured and concise third-party observations improves the quality of granted European patents. Observations containing very relevant objections can also considerably reduce the length of the procedure. The structure of the online form for third-party observations has been specifically designed to encourage concise and well-reasoned observations which can be quickly understood and evaluated by examiners.
Use of the online form is recommended, but there is no prescribed format for making observations, and existing methods for filing documents with the EPO may continue to be used.
Article 115 EPC applies only to published European patent applications and patents, for which proceedings are pending before the EPO.
Observations should be filed in an official language of the EPO (English, French or German).
Supporting documents, e.g. prior art citations, can be written in any language. However, the EPO may require the third party to file a translation into an official language. If the required translation is not filed in due time, the EPO may disregard the document in question.
Observations may be filed anonymously. Any offensive language will be removed before the submission is added to the file and forwarded to the applicant/proprietor.
Observations may not concern formal aspects, but should be restricted to the substantive requirements of the EPC, e.g. Articles 52-57 EPC.
For applications still in the international phase, third-party observations are processed in accordance with the PCT legal framework and must be filed with the IB using ePCT. Users are directed to the WIPO website for further information.
Treatment of observations
Firstly it is important to note that, subject to the formal requirements mentioned above, submissions filed as third-party observations will be placed in the public part of the file of the patent application or patent. This means that they will be accessible to the public.
All observations meeting the above formal requirements will be considered by the examining or opposition division, which will then comment on the relevance of the observations in the next substantive communication to the parties of the proceedings. However, no communication will be issued where observations are received after the examining division has issued a communication under Rule 71(3) EPC and it does not regard them as relevant. If applicable, the observations will be considered when the European search report and opinion on patentability are being drafted.
The third party is not a party to the proceedings before the EPO and so will not be informed directly or be further involved in proceedings. However, the progress of proceedings before the EPO can be followed online using the European Patent Register which includes an email alert service.
More information on third-party observations is provided in the Guidelines for Examination in the EPO (Part E-VI, 3), the Guidelines for Search and Examination at the EPO as PCT Authority (Part E-II) and the Frequently Asked Questions.