1.2.2 The invitation to confirm early request for examination (Rule 70(2) EPC)

Under R. 70(2) EPC (Art. 96(1) EPC 1973) if the request for examination has been filed before the European search report has been transmitted to the applicant, the EPO shall invite the applicant to indicate, within a period to be specified, whether they wish to proceed further with the application, and shall give them the opportunity to comment on the search report and to amend, where appropriate, the description, claims and drawings. In order to accelerate proceedings, the EPO offers the applicants the possibility to waive the right to receive the invitation to confirm early request for examination under R. 70(2) EPC (see EPC Guidelines C‑VI, 3 – April 2025 version).

Following J 8/83 (OJ 1985, 102), the applicant is entitled to receive the invitation provided for in R. 70(2) EPC also in cases where a supplementary European search report is to be drawn up on a Euro-PCT application (see EPC Guidelines E‑IX, 2.5.3 – April 2025 version).

In J 8/83 and J 9/83 the Legal Board found that if a supplementary European search report had to be drawn up in respect of an international application which was deemed to be a European patent application, the applicant was entitled to receive the invitations provided for in Art. 96(1) EPC 1973 and R. 51(1) EPC 1973 (now R. 70(2) EPC). Since in the case of such an international application, responsibility for examination of the application did not pass to the examining division until the applicant had indicated under Art. 96(1) EPC 1973 that they desired to proceed further with their application, the applicant might obtain a refund of the examination fee if in response to the invitation under Art. 96(1) EPC 1973 they withdrew their application, or allowed it to be deemed to be withdrawn. The Legal Board noted that the provisions of Art. 96(1) EPC 1973 and R. 51(1) EPC 1973 encouraged applicants to review their applications critically and realistically in the light of the European search report, before substantive examination began. The opportunity given by the EPO to obtain a refund of the substantial fee for examination by withdrawing the application at that stage, or allowing it to be deemed to be withdrawn, provided an additional incentive to withdraw cases unlikely to succeed.