19 February 2010

The Language of the Proceedings before the EPO cannot be changed (G04/08)

According to Art 14 (3) EPC, "the official language of the European Patent Office [English, German, French] in which the European patent application is filed [...] shall be used as the language of the proceedings in all proceedings before the European Patent Office [...]". As also reported here and here, the Enlarged Board of Appeal of the EPO has now released its decision G04/08 (in French) in which it is explained that the language of proceedings according to the Art 14 (3) EPC cannot be changed.

Upon entry into the Europeant regional phase, the applicant of EP 02 759 818 requested to change the language of the proceedings from French to English and at the same time filed an English translation of the original French application on which the examination proceedings should be based. The rejection of this request was separately appealed and the competent Board of Appeal referred three questions to the Enlarged Board of Appeal, among which the following two had to be answered:

Question 1: If a PCT application has been filed in an official language of the EPO, can the applicant, on entry into the regional phase, file a translation of the application into another EPO official language with the effect that the language of this translation must then be considered as language of the proceedings? Answer: No.

Question 2: If the answer to that question is no, can EPO departments use in written proceedings an official language other than the language of proceedings used for the application? Answer: No.

The decision makes clear that (i.) the EPO authorities have to use the language of proceedings according to Art 14 (3) EPC for their communications and that (ii.) the proceedings cannot be based on a translation of the original application. However, the applicant may always prepare his submissions in an another official language of the EPO (Rule 3 (1) EPC) and he may also use another official language in oral processdings (Rule 4 (1) EPC).