If the European patent application is to be refused or is refused or deemed to be withdrawn following failure to reply within a time limit vis-à-vis the European Patent OfficeEPO, the application is allowed to proceed if the applicant makes a request for further processing of the application. Further processing must be requested by payment of the prescribed fee within two months of the communication concerning either the failure to observe a time limit or a loss of rights. The omitted act must be completed within the period for making the request. The request is not deemed to have been filed until this fee has been paid.
A request for further processing may also be filed between expiry of the unobserved time limit and notification of the communication concerning either the failure to observe a time limit or a loss of rights.
The department competent to decide on the omitted act also decides on the request for further processing.
A mere request for oral proceedings is not to be seen as completion of the omitted act and therefore cannot lead to further processing being granted (B‑XI, 8).
As a general rule, further processing is the legal remedy for failure to observe a time limit during proceedings before grant, even where the consequence is a partial loss of rights (e.g. loss of priority right). However, the possibility of requesting further processing is ruled out for the periods referred to in Art. 121(4) and Rules 6(1), Rule 16(1)(a), Rule 31(2), Rule 36(2), Rule 40(3), Rule 51(2) to Rule 51(5), Rule 52(2) and Rule 52(3), Rule 55, Rule 56, Rule 58, Rule 59, Rule 62a, Rule 63, Rule 64, Rule 112(2) and Rule 164(1) and Rule 164(2).