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Guidelines for Examination


16.2 Period allowed for remedying deficiencies

The period for remedying the following deficiencies is two months from a communication pointing them out according to Rule 58:

non-appointment of a representative where the applicant has neither his residence nor principal place of business in a Contracting State - see A‑III, 2 (regarding failure to file an authorisation where this is necessary, see A‑VIII, 1.5 and the Decision of the President of the EPO dated 12 July 2007, Special edition No. 3, OJ EPO 2007, L.1);
documents making up the application not complying with physical requirements (see A‑III, 3);
request for grant (with the exception of the priority criteria) not satisfactory (see A‑III, 4);
abstract not filed (see A‑III, 10);
where required, translation of the application not filed (see A‑III, 14)
no claims (see A‑III, 15).

If the above deficiencies under (i)-(iv) or (vi) are not rectified in time, the application is refused under Art. 90(5). If the deficiency under (v) is not rectified in time, the application is deemed to be withdrawn under Art. 14(2). According to Rule 135(2), further processing is excluded for all of the above losses of rights, which all arise from the failure to observe the time limit of Rule 58.

The following deficiencies are rectified under provisions other than Rule 58:

non-payment of the claims fees (Rule 45 - see A‑III, 9);
priority document or file number of the previous application is missing (Rule 59 - see A‑III, 6); and
non-payment of filing fee, including any additional fee, and search fee (see A‑III, 13).

According to Rule 45(2), the period for remedying deficiencies with regard to the payment of claims fees under (vii) is one month from a communication pointing out their non-payment. Failure to correct this deficiency in time leads to the claims in question being deemed to be abandoned under Rule 45(3). Further processing applies to this loss of rights.

Deficiencies under (viii) are to be corrected within a period of two months to be specified by the EPO from a communication according to under Rule 59 pointing out the failure to supply the certified copy and/or the file number of the priority document. This period can be extended under Rule 132(2) (see E‑VIII, 2.3.5, for Euro-PCT applications), but further processing is ruled out by Rule 135(2). This period under Rule 59 cannot be less than two months or more than four months (Rule 132(2)). Failure to correct this deficiency in time leads to the loss of the priority right. Further processing is excluded for this loss of rights according to Rule 135(2).

Failure to pay the filing, additional or search fee on time results in the deemed withdrawal of the application according to Art. 78(2). This loss of rights ensues directly on expiry of the applicable time limit (see A‑III, 13). A deficiency under (ix) can be corrected by requesting further processing.

Where appropriate, the Search Division is informed of any loss of rights.