(1) Where the person adjudged by a final decision to be entitled to the grant of the European patent files a new European patent application under Article 61, paragraph 1(b), the original application shall be deemed to be withdrawn on the date of filing the new application for the Contracting States designated therein in which the decision has been taken or recognised or must be recognised on the basis of the Protocol on Recognition.
(2) The filing fee and search fee shall be paid within one month of filing the new application. If the filing fee or search fee is not paid in due time, the application shall be deemed to be withdrawn.
(3)27 The designation fee shall be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report drawn up in respect of the new application. Rule 39, paragraphs 2 and Rule 39, paragraphs 3, shall apply.
26See opinion of the Enlarged Board of Appeal G 4/98 (Annex I).
27Amended by decision of the Administrative Council CA/D 4/08 of 21.10.2008 (OJ EPO 2008, 513), which entered into force on 01.04.2009.
13.12.2007 - 31.03.2009Decision of the Administrative Council of 07.12.2006 (CA/D 10/06), (OJ EPO 2007, 8 and Special edition 1/2007)01.04.2009 -CA/D 4/08 (OJ EPO 2008, 513)