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

If the EPO did not act as ISA or SISA for the application it will upon entry into the European phase draw up a supplementary European search report (see point 562). Up to expiry of the time limit set in the Rule 161 EPC/Rule 162 EPC communication the applicant may file (“voluntary”) amendments and comments. All amendments and comments filed within the time limit set in the communication will be taken into account in drawing up the supplementary European search report and the search opinion (see points 562, 564). This means that the supplementary European search will be based on the last set of claims filed up to expiry of this time limit for which any claims fee due is paid (see point 597).

After issuance of the supplementary European search report the applicant may, first of all, comment on both the report and the search opinion and file (“voluntary”) amendments to the description, claims and drawings within the period specified in the communication under Rule 70a(2) EPC for indicating whether he wishes to proceed further with the application.

Secondly, if any deficiencies are noted in the search opinion, the applicant will be required under Rule 70a(2) EPC to respond to the objections made. The application will be deemed withdrawn if the applicant does not submit a substantive reply to the communication under Rule 70a(2) EPC (“mandatory response”). The loss of rights can be remedied with further processing.

It is at the discretion of the examining division to accept any further amendment at a later stage of the proceedings.