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Guide for applicants, Part 2: PCT procedure before the EPO (Euro-PCT Guide)

 
 
Table of Contents - Guide for applicants, Part 2: PCT procedure before the EPO (Euro-PCT Guide)
B. The EPO as a PCT receiving Office
Incorporation by reference of missing parts and elements
Incorporation by reference of missing parts and elements
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If the applicant has omitted to file a part of the description, the claims or the drawings of the international application or an entire element, i.e. (all of) the description or all of the claims, these parts and elements may be incorporated in the international application under the conditions set out in Rules 4.18 and 20 PCT. If all conditions are met, such incorporation will not affect the international filing date. This procedure may be summarised as follows:
R. 4.18, 20.5, 20.6, 20.7 PCT
WIPO PCT Guide 6.028 
55
Firstly, such incorporation requires that the omitted part(s) or element(s) be completely contained in an application from which the priority was (validly) claimed on the international filing date (see point 128 ff). The test for "completely contained" requires that the later filed missing part - e.g. a paragraph, a page or a drawing - be identical to the corresponding text/drawing in the priority document.
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Secondly, the PCT request must contain a statement of incorporation by reference of the priority application(s). A statement to that effect is already provided in Box VI of the PCT request form. 
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If both conditions are met, an applicant who has omitted to file a part or element may include it by confirming its incorporation by reference. This requires that the conditions for confirmation set out in Rules 20.6 and 20.7 PCT are also met.
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The procedure before the EPO as ISA/IPEA in the case of a positive/negative decision by the receiving Office on a request for incorporation by reference is set out below (see points 231, 369).
59
An applicant wishing to add omitted parts or elements to an international application which have no basis in a claimed priority application may do so under the conditions set out in Rule 20.5 PCT. However, in that case the filing date of the application as a whole will be the date of filing of the missing parts or elements.