Where the application documents contain one or more claims filed after the accorded date of filing (Rules 40(1), Rule 57(c) and Rule 58), the search examiner is required to examine whether or not the one or more claims fulfil the requirements of Art. 123(2) in the light of the technical content of the application documents filed at the accorded date of filing. If the claims do not meet the requirements of Art. 123(2), the search is carried out in accordance with B‑VIII, 6.
Where the search opinion and search report are based on late-filed claims but Rule 137(4) has not been satisfied (see H‑III, 2.1), a communication according to Rule 137(4) (see H‑III, 2.1.1) cannot be sent at this stage (before preparation of the search opinion) because the application is not yet under the responsibility of the Examining Division (see C‑II, 1). However, once the Examining Division has assumed responsibility for the application, it may send such a communication, provided that the late-filed claims have not been superseded (see H‑III, 2.1.1) and only where the application is of one of the types mentioned in H‑III, 2.1.4.