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

 
 
XIV.
Review by the EPO as designated Office of Euro-PCT applications which fail in the international phase 
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At the request of the applicant, the EPO may review whether a refusal by the receiving Office to accord a filing date, or a declaration on the part of the receiving Office that a Euro-PCT application or the designation of a state is considered withdrawn, or a finding by the IB under Article 12(3) PCT is the result of an error or omission on the part of the authority concerned, in which case the Euro-PCT application can proceed as a European application.
To obtain such a review by the EPO as designated/elected Office, applicants must take the following steps: 
The request to the IB under Article 25(1) PCT to send copies of documents in the files promptly to the EPO as designated Office must be made within the two-month time limit under Rule 51.1 PCT.
The filing fee under Rule 159(1)(c) EPC must be paid and, where required, a translation of the Euro-PCT application furnished within the same two-month time limit (Rule 51.3 PCT). Applicants are recommended to undertake the remaining steps for entry into the European phase under Rule 159(1) EPC at the same time (see points 453 ff, 515 ff).
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Pursuant to Article 24(2) PCT the EPO as designated/elected Office may even maintain the application as a European application if this is not required by virtue of the provision in Article 25(2) PCT. The filing of a request under Article 24(2) PCT is governed by the same requirements as a request for review under Article 25(2) PCT. Such request may be combined with a request for re-establishment of rights or further processing.
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If the applicant proves to the satisfaction of the EPO that the international filing date is incorrect owing to an error made by the receiving Office or that the priority claim has been erroneously considered by the receiving Office or the International Bureau not to have been made, and if the error is an error such that, had it been made by the EPO itself, the EPO would rectify it under EPC law or practice, the EPO must rectify the error and treat the international application as if it had been accorded the rectified international filing date or as if the priority claim had not been considered not to have been made.