I see in that, assuming national law provides for it, there are provisional rights in EPO application from the day of publication.

Art. 67(1) EPC:

A European patent application shall, from the date of its publication, provisionally confer upon the applicant the protection provided for by Article 64, in the Contracting States designated in the application.

I assume that these rights, like those in U.S. law, are to collect reasonable royalties for activities that occurred after publication but that no suit could start until after grant and no collection can be sought in the case of no grant. An answer to another question asserts that they can be sought before grant. If true, it could lead to ridiculous outcomes. Art. 69(2) EPC has been cited in that other question in support of that position.

2 Answers 2


Any Contracting State may prescribe that a European patent application shall not confer such protection as is conferred by Article 64. However, the protection attached to the publication of the European patent application may not be less than that which the laws of the State concerned attach to the compulsory publication of unexamined national patent applications. In any event, each State shall ensure at least that, from the date of publication of a European patent application, the applicant can 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. Source

If the language is not the official in one of the countries you need to translate it and make it public according to the national law or send it to the person using the invention

Example: Portugal law

Is there a provisional protection under Art. 67 EPC for a European patent application?

Yes, Portuguese law provides provisional protection after publication of the European application under Art. 67(1) EPC, said protection being equivalent to published national patent applications, provided that a translation of the claims, accompanied by a copy of the drawings, is filed. A notice is then published in the patent bulletin and, simultaneously, the translation together with the drawings, if any, are made available to the public. Provisional protection may be called upon even before publication, against a third party who has been notified of the submission of the application and received the details of the case.

What are the rights conferred by the provisional protection?

The provisional protection provides the same protection as that of a granted patent, to be considered in the calculation of any compensation (Art. 5(1) CPI). Nevertheless, verdicts in suits brought up on the basis of provisional protection cannot be delivered before the final grant or refusal of the application, as the judicial case is suspended at the end of the submission of the arguments by the parties. source

  • And I assume only if the final disposition is a grant will the provisional compensation be granted. If so, it makes sense unless there can be a case where provisional rights lead to compensation for “infringement” of published claims that are significantly broader or different from issued claims where the activity would not come close to infringement of any issued claim.
    – George White
    Jan 18, 2022 at 7:20
  • @GeorgeWhite That is correct. Provisional rights will entitle you to compensation for the period between publication of the application (or publication or submission of translated claims as mentioned in this response) and the grant of the patent. The compensation can only be requested once the patent is issued, and to the extent that the infringer falls within part of the scope of the claims of the patent application and that same scope is present in the patent as granted. Jan 18, 2022 at 12:34
  • Can you make that an answer?
    – George White
    Jan 18, 2022 at 16:48

I would like to add that the inventor may ask to have the applications processed under the program for accelerated prosecution of European patent applications (PACE), in order to get a faster grant/refusal.

The EPO does not decides on infringement:

Art. 64(3)

Any infringement of a European patent shall be dealt with by national law.

But the EPO may give technical opinion:

Art. 25

At the request of the competent national court hearing an infringement or revocation action, the European Patent Office shall be obliged, on payment of an appropriate fee, to give a technical opinion concerning the European patent which is the subject of the action. The Examining Division shall be responsible for issuing such opinions.

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