Enter the PCT European Regional Phase at the EPO

European Patent Protection via the PCT: How the European Regional Phase Works

Filing a Patent Cooperation Treaty (PCT) international application does not, by itself, provide patent protection in Europe.

To obtain enforceable rights, the application must enter the European regional phase before the European Patent Office (EPO) within a strict time limit.

Entering the European regional phase allows a PCT application to be examined under the European Patent Convention (EPC) and, if granted, to take effect in multiple European countries through a single procedure.

This article explains how the European regional phase works, which requirements apply at entry of an Euro-PCT, and how European prosecution is typically coordinated with international patent strategies.

Why European Patent Protection Matters

Europe is one of the world’s largest markets for innovative technologies. For many inventions, particularly in software, AI, medical devices, biotech, electronics, and industrial engineering, patent protection in Europe is commercially decisive.

A European patent granted by the European Patent Office (EPO) can later be validated in individual countries, including European patent validation in Spain, and/or converted into a Unitary Patent for participating EU member states, which can confer patent protection in up to up to 46 countries.

What is the European Regional Phase of a PCT Application

A PCT application does not result in a patent unless it enters the national or regional phase in the selected jurisdictions. To obtain patent protection in Europe, the PCT application must enter the European regional phase and be examined under the EPC.

If the European patent application is granted, it becomes a European patent that may:

• be validated in selected EPC member states, such as Spain;
• be converted into a Unitary Patent for 18 participating countries of the European Union; or
• combine both approaches,

with just a single, centralized patent procedure, namely, a single examination procedure.

Entering the European Regional Phase: Requirements and Deadlines

To validly enter the European regional phase, the following must be completed within 31 months from the priority date according to Rule 159 EPC:

1. Filing of the PCT application documents with the EPO.
2. Submission of a full translation if the application is not in English, French, or German.
3. Payment of official EPO fees (filing fee + additional pages fee, search fee, examination fee, designation fee, renewal fee for the 3rd year, optional additional claims fee, optional validation/extension fees), whose amounts change depending on the case:
   
   1. Filing fee + additional pages fee: EUR 135 plus EUR 17 per each page of the PCT application over 35 pages (considering amendments filed upon entry), which may be each of: (1) 30% less depending on the language of the PCT, and (2) 30% less if the applicant is eligible for the micro-entity fee scheme.
   2. Search fee:
      • EUR 1,520 if the EPO was not the International Searching Authority (ISA) or Supplementary ISA (SISA), which may be each of: (1) EUR 275 if the ISA/SISA was a particular Authority, and (2) 30% less if the applicant is eligible for the micro-entity fee scheme; or
      • EUR 0 if the EPO was the ISA/SISA.
   3. Examination fee:
      • EUR 1,915 if the EPO was not the ISA/SISA; or
      • EUR 2,135 if the EPO was the ISA/SISA,

      in any of both cases, the fee may be each of: (1) 75% less if the EPO was the International Preliminary Examination Authority (IPEA) in a PCT Chapter II request, (2) 30% less if the applicant is a natural person, a microenterprise, a small or medium enterprise, a non-profit organization, a university or a public research organization of a country of the EPC that has at least one official language different from English, French and German, and (3) 30% less if the applicant is eligible for the micro-entity fee scheme.

   4. Designation fee: EUR 685, which may be 30% less the applicant is eligible for the micro-entity fee scheme.
   5. Renewal fee for the 3rd year: EUR 690 if two years have already elapsed from the filing date of the PCT, which may be 30% less the applicant is eligible for the micro-entity fee scheme.
   6. Optional additional claims fee: EUR 275 for each claim over 15, and EUR 685 for each claim over 51, which may be paid later on and/or any excess claims be removed from the claim set by way of amendment.
   7. Optional validation/extension fees: ranging from EUR 102 to EUR 240 for designating validation and/or extension countries (Bosnia and Herzegovina, Morocco, Republic of Moldova, Tunisia, Cambodia, Georgia, Lao People’s Democratic Republic).

   The micro-entity fee scheme is applicable when all applicants of a European patent application are a microenterprise, natural person, non-profit and/or public research organization, or a university, and none of these applicants is the applicant of five (5) or more European patent application or European regional phase entry in the five (5) years prior. If the condition of an applicant changes during pendency of the European patent application, the elegibility for the micro-entity fee scheme shall be updated accordingly.

4. Appointment of a European patent attorney where required, without having to sign a Power of Attorney.

If these requirements are not met in time, the European regional phase is not validly entered and no European patent can be obtained.

Missed Deadline and Further Processing

The 31-month deadline cannot be extended.

If the European regional entry is missed or not performed correctly, the EPO will issue a communication allowing further processing. In practice, this may allow entry up to approximately 33-34 months from the priority date.

Further processing involves a significant surcharge on the official fees and should only be relied upon as a safety net. However, it is not necessary to provide any explanations as to why the European regional entry was missed nor show that it was missed despite all due care having been taken or that it was unintentionally missed.

Cost Structure and Strategic Advantages

Entering the European regional phase does not immediately require validation in individual countries.

At the European stage, applicants and their representatives incur EPO filing, examination and renewal fees, among other, as well as professional fees for prosecution before the EPO.

A single examination for all countries in which a European patent may confer protection rights means:

• a single examining authority, the Examining Division of the EPO;
• a single set of arguments in favor of the patentability of the invention;
• a single prosecution strategy for all countries;
• a single legal framework, the EPC; and
• a single set of official fees to be paid.

National and/or unitary validation and translation costs, including those required for validation in Spain, are only incurred after grant. This allows applicants and their representatives to assess the commercial value of the invention before committing to national and/or unitary patent protection in Europe.

Common Strategic Errors in Euro-PCT Entries

Applicants and their representatives frequently encounter difficulties when the European regional phase is treated as a purely administrative step.

Common errors and pitfalls include:

• entering Europe by default without a defined market or enforcement strategy;
• underestimating the strict subject-matter eligibility requirements applied by the EPO that may not exist at other Patent Offices;
• poor coordination between European and non-European prosecution strategies; and
• assuming that the Unitary Patent replaces national validations in all countries.

Each of these errors can significantly reduce the value of a European patent.

When Entering the European Regional Phase Makes Sense

Entering the European regional phase is typically appropriate when Europe is a relevant current or future market, when licensing or enforcement activities are expected, or when European patent coverage is required by partners or investors.

In some cases, not entering Europe may also be a rational decision, provided it is made consciously and with full information.