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

 
 
Request for early processing
433
An applicant can request the EPO as designated or elected Office to commence processing the Euro-PCT application at any time before expiry of the 31-month time limit. 
434
For this purpose, the applicant must file an express request for early processing, which is not included in Form 1200. Moreover, he must fulfil the requirements for entry into the European phase as if the 31-month time limit provided for in Rule 159(1) EPC expired on the date he requests early processing.
435
This means that, for an application to be processed early, the following requirements must be complied with: payment of the filing fee (see point 540), filing of the translation (where applicable, see point 515), specification of the application documents (see point 479), payment of the search fee (where applicable, see point 585). Which further requirements must be complied with depends on the date on which early processing is requested, i.e. on whether the time limits for paying the designation fee (Rule 39(1) EPC) and the renewal fee (Rule 51(1) EPC) and for filing the request for examination and paying the examination fee (Rule 70(1) EPC) have already expired at that date (see points 554, 605 ff and 590 ff). The term “necessary requirements” is used to refer to the requirements that must be complied with for a request for early processing for the application concerned to be effective.
436
Where applicable, the certificate of exhibition must also be filed on entry into the European phase (see point 617). However, if this requirement is not met, this will not prevent the request for early processing from being effective, but it will affect the prior art that the EPO takes into account in the procedure.
GL/EPO B-VI, 5.5
437
Claims fees for any claims in excess of fifteen need only be paid upon expiry of the period under Rule 162(2) EPC. Therefore, their payment is not a requirement for a request for early processing to be effective.
438
Fees which need to be paid for a request for early processing to be effective must not be paid by automatic debit order, since in that case the fees are debited - and thus paid - only on the last day of the 31-month time limit.
439
If on the date the request for early processing is filed all necessary requirements (see point 435) are complied with, the request for early processing is effective as from that date and the application will be processed in the same way as any Euro-PCT application which has entered the European phase. This means, for instance, that the EPO as designated/elected Office will issue the communication under Rule 161/162 EPC directly after it has established that the request for early processing is effective (see point 490). Furthermore, as from the date the request for early processing is effective, the applicant may file a divisional application (see point 659).
440
If on the date the request for early processing is filed any necessary requirement (see point 453) is not complied with, the request for early processing will not be effective on the date of receipt of the request but only as from the earliest date thereafter on which all requirements necessary on that date have been complied with (see point 435). It is only on the latter date that the application enters the European phase, and from that moment on is processed in the same way as any Euro-PCT application which has entered the European phase.
441
If the requirements for a request for early processing to be effective are not complied with before expiry of the 31-month time limit, the EPO as designated/elected Office cannot start processing the application until that time limit has expired. 
442
From the date the applicant's request for early processing is effective, any subsequent withdrawal under Rule 90bis PCT will have no effect in respect of the procedure in the European phase.
443
Note that if early processing is requested because the applicant wishes not only the processing of the application before the EPO as designated/elected Office but also the examination of the application to start, he must have filed a valid request for examination (including payment of the examination fee) under Article 94 EPC, even if the time limit under Rule 70(1) EPC has not yet expired at the date of effective entry into the European phase, since examination will be taken up only if a request for examination has been validly filed.
444
Furthermore, if a request for examination is filed before the EPO has, where applicable, sent the supplementary European search report to the applicant, examination will start only upon receipt of an indication from the applicant that he wishes to proceed further with the application and, if required, a response to the extended European search report. The applicant may waive his right to be asked whether he wishes to proceed further. He can indicate this in box 4.2 of Form 1200. 
445
If the EPO acts as designated Office and the IB has not yet transmitted to it a copy of the international application, the ISR and the WO-ISA, the applicant may but does not have to file with the IB a request to do so. If needed, the EPO will take care of this itself.
446
The same applies if the EPO acts as elected Office and the IB has not yet transmitted to it a copy of the international application, the ISR, the WO-ISA and the IPER with its annexes.