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If an application is made in one of member states of Paris convention, then it is entitled to 12-month priority in member states. But what if applicant didn't pay the filing fee to the receiving office (e.g. in this particular cas it's EPO) on time and application was deemed withdrawn (however, it was technically made)? Or if it was refused for some other reason?

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  • Not an answer but the words of Article 4 - "Any person who has duly filed an application for a patent . . . Any filing that is equivalent to a regular national filing . . . (3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application . . . "
    – George White
    Dec 10, 2020 at 2:40

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Yes.

Article 4A of the Paris Convention provides (in relevant part; quoting from the official English translation):

(1) Any person who has duly filed an application for a patent ... in one of the countries of the Union ... shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.

(3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.

So, all that is required is that the prior application got a filing date. Bodenhausen's Guide further clarifies, at page 40: Bodenhausen's Guide to the Application of the Paris Convention, p. 40

In many countries, the question of "what is sufficient to establish the date on which the application was filed" would now be governed by Article 5 of the Patent Law Treaty (PLT).

It is worth adding that a copy of the prior application would be included in the file wrapper of any application claiming priority from the prior application (and the applicant needs to provide the copy for that purpose).

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  • I agree with the answer but wonder how the applicant establishes the details of the filing to other Paris Convention jurisdictions since the information in the office of the first filing is never public if the application is not published.
    – George White
    Mar 11, 2023 at 7:36
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    @GeorgeWhite This is provided for in Article 4D(3): the office of first filing issues a certified copy of the prior application, and the applicant files this copy with the office of later filing. Again, the certified copy is included in the file wrapper of the later application, and therefore becomes accessible to the public even if the office of first filing never publishes the prior application.
    – Extraneous
    Mar 11, 2023 at 11:54

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