The examination fee is refunded:
This applies in particular where the applicant does not respond to the search opinion on time (leading to the application being deemed to be withdrawn under Rule 70a(3) - see B‑XI, 8), but does file on time either the request for examination according to Rule 70(1) (see C‑II, 1) or confirmation that he wishes to proceed with the application according to Rule 70(2) (see C‑II, 1.1).
As concerns (i) above, this applies to all European patent applications which are withdrawn, refused or deemed to be withdrawn on or after 1 July 2016. As concerns (ii) above, this applies to all European patent applications for which substantive examination began on or after 1 November 2016 (see the Decision of the Administrative Council of 29 June 2016, OJ EPO 2016, A48). For all applications for which substantive examination began before that date, Art. 11 RFees as in force before 1 November 2016 continues to apply, which means that there will be no refund if the application is withdrawn, refused or deemed to be withdrawn at this stage of proceedings.
Communications under Art. 94(3) "issued by the examining division proper" (see also C-III, 4) are all communications indicating that the application does not meet the requirements of the EPC and referring to deemed withdrawal under Art. 94(4) in case the deficiencies are not duly remedied. These include the following: invitations under Rule 137(4), minutes of consultations by phone or in person, accompanied by an invitation to remedy deficiencies, communications relating to the ‘completely contained’ criterion pursuant to Rule 56(3), or summons to oral proceedings pursuant to Rule 115(1) to which a communication complying with the requirements of Art. 94(3) and Rule 71(1) is annexed. In contrast, communications addressing purely formal deficiencies and issued by formalities officers as part of the duties entrusted to them, even if issued on the basis of Art. 94(3), do not constitute communications under Art. 94(3) "issued by the examining division proper". Likewise, communications issued by the examining division itself on some other legal basis, such as Rule 164(2)(a), Rule 53(3) or Art. 124, have no bearing on the period for a withdrawal qualifying for the 50% refund (see the Notice from the EPO dated 30 June 2016, OJ EPO 2016, A49).
An applicant unsure whether substantive examination has begun and wanting to withdraw the application only if he will receive the 75%100% refund may make withdrawal contingent upon the refund ("conditional" withdrawal). The date of the start of examination (C‑IV, 7.1) is indicated by means of EPO Form 2095 in the public part of the dossier and is thus open to file inspection in the European Patent Register after publication of the patent application. If EPO Form 2095 is not on file, substantive examination is deemed to have started on the date on which the first communication from the examining division proper is issued (e.g. a communication under Art. 94(3), Rule 71(3) or any other legal basis as mentioned above). Before publication, the EPO will provide the applicant with the relevant information upon request, or this information can be accessed electronically via the MyFiles service. For more details see OJ EPO 2013, 153.