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Guidelines for Examination

 
 
Table of Contents - Guidelines for Examination
Part A Guidelines for Formalities Examination
Chapter III – Examination of formal requirements
12. Extension of European patent applications and patents to States not party to the EPC
12.2 Time limit for payment of extension fee
12.2
Time limit for payment of extension fee 

Under the applicable national provisions of the Extension States, the extension fee must be paid within six months of the date on which the European Patent Bulletin mentions the publication of the European search report or, where applicable, within the period for performing the acts required for entry of an international application into the European phase. If the extension fee is not paid within the applicable period, the request for extension is deemed withdrawn.

If no loss of rights occurs under Rule 39 and the extension fee has not been paid within the applicable basic time limit (Rules 39(1), 17(3), 36(4) and 159(1)(d)), no communication under Rule 112(1) is issued and the request for extension is deemed to be withdrawn without the possibility of late payment with surcharge unless a period of two months from expiry of the basic period has not expired (see below). However, if:

(i)
one or more extension fees are not paid within the basic time limit, and either: 
(ii)
the European application was filed, or the Euro-PCT application entered the European phase, on or after 1 April 2009 and is deemed to be withdrawn due to non-payment of the designation fee (see A-III, 11.2.3), or
(iii)
the European application was filed, or the Euro-PCT application entered the European phase, before 1 April 2009 and one or more designations of EPC Contracting States are deemed to be withdrawn because the designation fee(s) in respect of such state(s) is/are not paid on time (see A-III, 11.3.2) and:
(a)
the applicant has not actively withdrawn these designations and 
(b)
the applicant has not waived the right to receive a Rule 112(1) communication in respect of these designations

then the EPO will notify the applicant of the loss of rights with regard to the designations in question or the application according to Rule 112(1). This communication according to Rule 112(1) will also draw the applicant's attention to the possibility of late payment of any extension fees not paid in the basic period.

In this case, the applicant may then request further processing according to Art. 121 and Rule 135 in respect of the deemed withdrawal of the application or of the designations. Along with further processing in respect of the unpaid designation fee(s), any unpaid extension fees may still be paid with a surcharge of 50% of the relevant fee(s) within a (non-extendable) period of two months after notification of the communication according to Rule 112(1) (see the Notice from the EPO dated 2 November 2009, OJ EPO 2009, 603).

If the basic period for payment of extension fees expires on or after 1 January 2010 and the fee for an Extension State has not been paid within that period, the applicant can pay the extension fee in combination with a 50% surcharge within two months of expiry of the basic period (see the Notice from the EPO dated 2 November 2009, OJ EPO 2009, 603). This applies regardless of whether (the) designation fee(s) is/are paid on time (within the basic period) or by means of further processing.

Furthermore, re-establishment of rights according to Art. 122 and Rule 136 is not possible in respect of payment of the extension fee.