Article 67

1. 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.

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.

3. Any Contracting State which does not have as an official language the language of the proceedings may prescribe that provisional protection in accordance with paragraphs 1 and 2 above shall not be effective until such time as a translation of the claims in one of its official languages at the option of the applicant or, where that State has prescribed the use of one specific official language, in that language:
a) has been made available to the public in the manner prescribed by national law, or
b) has been communicated to the person using the invention in the said State.

4. The European patent application shall be deemed never to have had the effects set out in paragraphs 1 and 2 when it has been withdrawn, deemed to be withdrawn or finally refused. The same shall apply in respect of the effects of the European patent application in a Contracting State the designation of which is withdrawn or deemed to be withdrawn.

UPC Case Law

UPC Court of First Instance

IPPT20250410, UPC CFI, LD Düsseldorf, Yellow Sphere v Tabbert

Damages or compensation derived from provisional protection conferred by a published European patent application (Article 32(1)(f) UPCA). Since such compensation is not regulated in either the UPP Regulation or the UPCA, the court must apply the provision of Art. 24(1)(c) UPCA on the basis of Art. 67 EPC, which grants Member States discretion in terms of how they structure such compensation. Since there is currently no uniform regulation on the question of compensation, it is initially for the plaintiff seeking such compensation to demonstrate that the conditions for compensation are met in the individual Member States in question.