What happens after filing a European patent application?

What happens once a patent application is filed at a patent office? Can you just sit and wait for the grant? Or, do you have any responsibilities? Let's take a look.

Please note that the patenting procedures can vary from one country to another. This website mostly focuses on the European patent application process.

Application number

After filing with the European Patent Office (EPO) (or, in fact, any other patent office), you will receive a filing receipt (electronically during the submission session or via post) including your application number. This application number will be assigned to your application during the whole procedure, and it can also prove to third parties that you have a pending patent application.

Filing date

If you filed all the necessary documents properly, the date on which you filed the application becomes your filing date.

Actually, to receive a filing date, only a few requirements have to be met:

• an indication that a European patent is sought,

• information identifying the applicant, and

• a description or a reference to a previously filed application.*

However, it is not allowed to add new subject matter later.**

So, unless you only need a filing date without proceeding with the application, you definitely should file the full application on the filing date. (There are some cases when only a filing date is desired, and the applicant does not need the application to be continued. One example is when the first application is filed with the sole purpose of claiming its priority. In order to claim priority, a valid filing date suffices. It is not a problem if the application has lapsed.)

If you have not filed something that would be required (e.g. parts of the description or drawings, or an indication that a European patent is sought), the filing date will change to the later date on which all the required documents are filed.

The date of filing is a very important date for several reasons. It is the date from which the term of the patent (20 years) is calculated, and the filing date will represent the date at which the invention’s patentability (novelty, inventive step, etc.) is assessed. Furthermore, it is the date from which the priority year is calculated.

Procedural steps the EPO will take after filing:

1. According a filing date or inviting you to remedy deficiencies

   (As described above.) If your documentation appears correct, your application is given a filing date - also known as your priority date. If there is a deficiency, you will receive a communication from the EPO and you will be invited to file the missing documents within a certain deadline (usually within 2 months).

2. Conduct a formalities examination

   After the filing date is accorded, there is a formalities examination to ensure that your documentation is correct and complete.
   You can find an article dedicated to the formal examination: "Formal examination and the parts of the patent application".

For more information about the steps of a European patent application procedure, please refer to article: "European patent application timeline with expected costs".

Actions that you have to take after filing:

1. Payment of fees

   You have to pay a filing fee and a search fee to the EPO within 1 month of filing the application.***

   You can find the EPO's current fee schedule here.

2. Wait

   If everything goes well – and there is no deficiency to correct –, the first stage of the European patenting procedure will move along without your active involvement. As a general rule, you just have to wait, and you will be sent the search report within 6 months of the date of filing.

3. File the subsequent applications within the priority year

   Now, you have one year to decide about the territory to cover with subsequent patents. According to the patent law, you have to file patent applications in the next 12 months in any other countries where you need patent protection. (A patent is an exclusive right granted for an invention for a limited time for a certain territory - usually one country). If you claim priority, those later filings will be treated as if they had been filed on your priority date.

   Read more about priority here: “Everything about priority”

4. Monitor that your rights are not infringed

   Patent rights are usually enforced in a court on the initiative of the patent proprietor. In most systems a court of law has the authority to stop patent infringement. However, it is the patent proprietor's responsibility to monitor, identify, and take action against infringers.

   However, please note that a patent application is not enforceable yet. You can send a warning letter to the infringers, but you can only sue if you have a granted patent and if your patent application has been published.

5. Monitor what others are protecting to ensure that you are not infringing

   A patent is – unfortunately – not a guarantee that you are not infringing.

   Read more in article “The most common misconceptions about patents”.

Steps that you can take after filing (if you wish):

1. You can publish your invention

   Now that your patent application is filed, you can make your invention public, you can disclose your invention by having meetings, attending conferences, starting crowdfunding campaigns, starting business negotiations and marketing without generating novelty-destroying prior art regarding any subsequent patent application(s).

   Do not disclose features that were not included in your application as filed!

2. You can use the expression "Patent pending" for marketing purposes

   Letting others know that you have a patent application pending is sometimes almost as important as the filing of the patent application. You can use this expression on the product itself, on the packaging of your product or on your website, etc. Using the "patent pending" expression has several benefits: sending a warning to competitors, a marketing tool in the direction of both potential investors and potential consumers, and making your product more desirable in order to improve sales performance.

3. You can withdraw your application and prevent its publication

   If, for any reasons you changed your mind and you do not wish to proceed with the filed application (e.g. the search report is quite negative and you see no chance for overcoming the objections, or if you improved your invention and do not want to proceed with the original one), you can would withdraw it at any time. You can simply abandon the application by not paying the fees. However, if you did pay the filing and search fee, your application will proceed to publication and it will become available to the public. In order to stop the publication, you can withdraw the application by simply requesting this from the EPO well before the publication.

   Read more about publication here: “Publication of a patent application”

* This is defined in Rule 40 EPC.
See the full legal text here.

** This is defined in Art. 123(2) EPC:
”The European patent application or European patent may not be amended in such a way that it contains subject-matter which extends beyond the content of the application as filed.”
See the full legal text here.

*** This is defined in Art. 78(2) EPC:
”A European patent application shall be subject to the payment of the filing fee and the search fee. If the filing fee or the search fee is not paid in due time, the application shall be deemed to be withdrawn.”
See the full legal text here.

Author: Zsofia Pintz
Published: August 2020
Updated: July 2023