Legal Evaluation of Each Statement
EP-F was filed in May 2023. Only Philippe was designated as inventor, but the true inventors are Philippe and Béatrice. The applicant (company F) has now received a Rule 71(3) EPC communication and wants to correct the inventor designation.
Inventor designation and its rectification are handled as a formalities/legal-division matter under Rule 21 EPC (rectification of the designation of an inventor), applying Rule 19 EPC mutatis mutandis.
Core rule: Rule 21(1) EPC
Rule 21(1) EPC provides that an incorrect designation of an inventor shall be rectified upon request, and this is subject to:
the consent of the wrongly designated person, and
where the request is filed by a third party, the consent of the applicant/proprietor.
The EPO Guidelines explain how this works in practice, including the important special case where the request is to add a further inventor.
Legal Evaluation of Each Statement
a) “… the designation of the inventor may be rectified even after the grant of EP-F.” — True
The EPO recognises that a request under Rule 21 EPC can be filed even after proceedings before the EPO are terminated, which covers the post-grant situation.
So the fact that EP-F is already at the Rule 71(3) stage (and even if it were granted later) does not bar rectification.
b) “… the applicant need not provide evidence that an error was made.” — True
Rule 21 EPC sets up a formal mechanism: rectification is made upon request and subject to the required consents. It does not require the applicant to prove inventorship substantively before the EPO; the EPO’s role is not to decide entitlement disputes but to process the rectification when the Rule 21 conditions are met.
(Practically, the EPO may check that the formal requirements under Rule 19/21 are satisfied, but there is no general “evidence of error” burden stated as a condition for rectification.)
c) “… if the request is filed by the applicant, the consent of Philippe is required to rectify the designation of the inventor.” — False
Here the correction sought is to add Béatrice while keeping Philippe.
The Guidelines state explicitly: If a further inventor is to be designated, the consent of the inventor(s) previously designated is not necessary (reference to J 8/82).
So, if company F (the applicant) files the request to add Béatrice, Philippe’s consent is not required for this “add further inventor” scenario.
d) “… if the request is filed by Béatrice, the consent of the applicant is required to rectify the designation of the inventor.” — True
If Béatrice files the request herself, she is a third party in the procedural sense. Rule 21(1) EPC then requires the consent of the applicant (or proprietor) in addition to the consent requirements applicable to the rectification.
Therefore, Béatrice cannot unilaterally obtain rectification at the EPO without the applicant/proprietor’s consent.
Exam Tip:
When you see “wrong inventor / missing inventor” close to grant:
1. Go straight to Rule 21(1) EPC (rectification), not Rule 139 corrections.
2. Memorise the consent logic:
- Adding an inventor → no consent needed from the already designated inventor(s).
- Request by third party → applicant/proprietor consent required.
3. Timing: can be requested even after proceedings are terminated (so don’t panic at Rule 71(3) or post-grant).
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.