If you are looking to obtain a European patent, there are a number of factors that affect the time it takes to be granted. The application process generally takes between 2 – 6 years from start to finish – but don't worry, if you would like to accelerate this process there are a number of methods you can use to do this.
It is possible to obtain a granted European patent within as little as 12 months from entering the European regional phase. Patent Cooperation Treaty (PCT) applications are not normally processed by the European Patent Office (EPO) until the expiry of the deadline for entry into Europe, i.e. 31-months from the earliest claimed priority date. If you don't want to wait this long, you can ask the EPO to start processing your application earlier. To do this, you should file an express request for early processing any time within the 31-month period, even if your international application has not yet been published.
Waive the Rule 161 period
When you enter the European regional phase, the EPO will typically send a communication allowing a 6-month period in which to amend the claims and pay excess claims fees under Rule 161. However, if those matters are dealt with upon entry into Europe, you can waive the Rule 161 communication and the associated 6-month period. This will avoid a delay before the search and examination stages commence.
EPO's PACE program
The main vehicle for accelerating your European patent application is the PACE program, whereby the EPO will typically issue a search or examination report within 3 months of the request. There is no official fee to pay but a PACE request can only be made once for each of the search and examination stages of the application process. Once requested, the European application will remain in the PACE program until the search/examination stage is complete. That means you can expect further examination reports to be provided within the same 3-month timeframe from your latest response.
However, if a response deadline is missed or extended, the application will drop out of the PACE program and return to the usual process.
The PACE program is typically preferred over the Patent Prosecution Highway for European patent applications because of its simplicity.
Reasons for not accelerating your patent application
Whilst your patent application is pending, you have patent-pending status. You don't have to wait until you obtain a patent to start creating, marking, selling or licencing your invention. You can begin this process straight away, as long as the patent application adequately covers all of the important aspects of your invention that you intend to exploit commercially.
In some circumstances, this may mean that you won't be looking to speed up the patent process and let the timescale run naturally. A slower patent application process may allow you more options for reacting to competitor activity whilst the application is pending, e.g. providing more options for claim amendment than after grant of a patent.
Another quirk of the European patent system is that renewal fees are paid to the EPO whilst the patent application is pending but are later paid to the national patent offices in individual European countries once the patent is granted. If you intend the patent to remain in force in a large number of European countries, the renewal fees to the EPO whilst the application is pending may be considerably lower than the national patent renewal fees after grant.
Now that you are aware of the timescales and acceleration options, get a better idea of the associated costs by using our pct2ep cost estimator.
8th December 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.