Third party input

A submission by third parties in the patent grant procedure prior to the grant of a patent or in the opposition procedure for a granted patent is an input from a person who is not involved in the procedure with which he or she can present facts and / or points of view to the patent office which they consider to be relevant to the procedure.

Legal basis

In the procedure for German patent applications, the submission of third parties is regulated in Section 43 (3 ) PatG . For the procedure for European patent applications, the submission of third parties is addressed in Art. 115 and Rule 114 EPC .

overview

Once granted, a patent is a prohibition against anyone except the patent holder within the territory to which it applies. In the patent granting process, the patent is examined and designed with regard to the legal requirements. This is primarily a procedure in which the applicant is involved and the respective patent office (DPMA, EPA) is the deciding authority. Due to its generality, the patent granting procedure is publicly available from the publication of a patent application. Nowadays it can be viewed easily via the Internet and the respective patent registers .

If an uninvolved party ("anyone" within the meaning of PatG § 43 (3), "third party" within the meaning of EPC Art. 115) of a pending patent application known to him thinks he can contribute other relevant circumstances in addition to the circumstances already discussed, he can do this in the form of a third party input. It reaches the file and is officially taken into account. This ensures that those potentially affected by the patent can influence its design at an early stage.

details

content

With a submission by third parties, the author regularly objects to the granting or maintenance of a patent applied for. For this purpose, such entries regularly have the following content:

The patent office is informed of further prior art , i.e. material that can be cited against a patent application.

There are substantive arguments against the requested patent grant. These can relate to the cited material, i.e. explanations of its relevance, comparability with the invention described in the patent application, combinability with other sources.

Further arguments, e.g. regarding clarity, practicability, disclosure and the like. Ä ..

Procedure, form, deadline

A third party input becomes part of the public file. After it has been received by the patent office, it will be sent to the patent applicant so that he can respond.

In general, the input of third parties in a pending procedure (examination procedure, opposition procedure) must be submitted in order to be considered. By itself it is inadmissible and pointless.

The entry must be made in writing in one of the official languages of the office. Apart from that, there are no special form or deadline requirements.

Submissions from third parties in addition to the submission of the opponent are also permissible in opposition proceedings.

Representation, costs

An entry by third parties is officially free of charge. The author does not need a legal representative, e.g. B. a patent attorney , but can use him if he wants.

Authorized person

Everyone can submit entries from third parties once or several times. Nor does it need to be identified. For example, a patent attorney can submit a submission from a third party without having to identify his client. The submission of third parties does not lead to the submitting party becoming a party to the procedure.

Filing online at the EPO

Entering third parties in the European granting procedure is particularly easy. When you have found the relevant file in the online register, there is a button (“Submit observations”) that leads to an online mask where arguments can be entered or relevant documents can be uploaded .

Consideration

For those considering a third party submission, the question arises again and again whether they actually want to submit their material (arguments, state of the art as set out above) by means of a third party submission or whether they only do so after the patent has been granted in the context of opposition proceedings should if he, as a party to the proceedings, has a stronger position in the proceedings.

Web links

European Patent Office Examination Guidelines on Third Party Submissions