When acting as a designated Office, the EPO must not process or examine an international application before expiry of the period applicable under Art. 22 PCT (Art. 23(1) PCT). However, the EPO may, on the express request of the applicant, process or examine an international application at any time (Art. 23(2) PCT). The applicant may request the International Bureau to communicate a copy of the Written Opinion established by the International Searching Authority to the EPO as designated Office once a request under Art. 23(2) PCT is made. If the International Bureau (IB) has not yet transmitted to the EPO a copy of the international application, the ISR and the WO-ISA, the applicant may but does not have to file with the IB a request to do so. If necessary, the EPO will take care of this itself.
A request for early processing under Art. 23(2) PCT or Art. 40(2) PCT may be filed with the EPO at any time before expiry of the 31-month time limit (Art. 22(3) PCT and Rule 159(1)). The request does not require a specific wording, but the applicant must clearly express that he wishes the processing of his application before the EPO as designated/elected Office to commence early.
For the request to be effective, the applicant must comply with the requirements stipulated in Rule 159(1) as if the 31-month time limit expired on the date he requests early processing, i.e.: payment of the filing fee (including any additional fee under Art. 2(1), item 1a, RFees if the application comprises more than 35 pages), filing of a translation (if a translation is required under Art. 153(4)), specification of the application documents, and payment of the search fee (where a supplementary European search report has to be drawn up under Art. 153(7)). Which further requirements stipulated in Rule 159(1) must be complied with depends on the date on which early processing is requested, since the (regular) time limits for paying the designation fee (Rule 39(1)) and the renewal fee (Rule 51(1)) and for filing the request for examination and paying the examination fee (Rule 70(1)) may not have expired on the date the request for early processing is filed. Therefore, if any of these time limits is still running on that date (or, in the case of the renewal fee, if the due date according to Rule 51(1) is later than that date), the request for early processing will be effective without the requirement(s) concerned having been complied with (Art. 153(2), Art. 11(3) PCT). If pursuant to Rule 159(1)(h) a certificate of exhibition must be filed and this requirement is not met, this will not prevent the request for early processing from being effective, but it will affect the prior art that the EPO takes into account in the European phase.
If on the date the request for early processing is filed any necessary requirement is not complied with, the request will be effective only as from the date on which all necessary requirements have been complied with.
If on the date the request for early processing is filed all necessary requirements for entry into the European phase are complied with, the request is effective and the Euro-PCT application will as from that date be processed in the same way as a Euro-PCT application which has entered the European phase by fulfilling the necessary requirements of Rule 159(1) within the 31-month time limit and without a request for early processing having been filed. On that date the international phase is thus terminated in respect of the EPO as designated/elected Office (J 18/09, Reasons 13). Moreover, since by filing an effective request for early processing the processing ban is lifted, as from that date it is no longer possible to claim the 31-month time limit under Rule 159(1). For details see the Notice from the EPO dated 21 February 2013, OJ EPO 2013, 156, as well as the Euro-PCT Guide ("How to get a European patent, Guide for applicants, Part 2, PCT procedure before the EPO") (see also E‑VIII, 2.4.1, E‑VIII, 2.5.2 and E‑VIII, 2.8).latest version of the Guide for applicants: “’Euro-PCT Guide’: PCT procedure at the EPO”.