A European application which contains more than fifteen claims at the time of filing the claims (see the paragraph below) incurs payment of a claims fee in respect of each claim over and above that number. For applications filed and international applications entering the regional phase on or after 1 April 2009, a higher amount is payable for each claim in excess of 50. The claims' order is their sequence at their time of filing. If an application contains more than one set of claims, Rule 45 is only applicable for the set of claims containing the highest number of claims. If, as a result of claims having been deleted owing to non-payment of claims fees, the number of claims remaining in the set that originally incurred the fees is reduced with the result that another set then has the greatest number, the number of claims in the latter set has to be reduced to the same number as that remaining in the set originally incurring the fees (see J 8/84). The claims fees must be paid within one month after the claims are filed.
The claims may be filed at the following stages:
Consequently, the claims fees must be paid within one month of whichever of the above dates of receipt applies.
If the claims fees have not been paid in due time, they may still be validly paid within a non-extendable period of grace of one month of notification of a communication under Rule 45(2) pointing out the failure to observe the time limit. The applicant cannot waive this communication. If a claims fee is not paid within the period of grace, the claim concerned is deemed to be abandoned and the applicant is notified to that effect. The applicant cannot waive the communication under Rule 112(1) noting the deemed abandonment of claims under Rule 45(3). If the claims fees paid are insufficient to cover all the claims incurring fees (i.e. claim no. 16 onwards), and if when payment was made no indication was given as to which claims were covered by the fees paid, then the applicant is requested to specify which claims incurring fees are covered by the claims fees paid. The Receiving Section notifies the search division of claims that are deemed abandoned. Any claims fee duly paid is refunded only in the case referred to in Rule 37(2) (see A‑II, 3.2, last paragraph).
In cases where:
(i)the application was filed by reference to a previously filed application (see A‑II, 220.127.116.11), and
the claims fees are due within one month of the filing date (since the claims of the previous application are effectively present on the European filing date). However, the EPO will not send the applicant a communication under Rule 45(2) with an invitation to pay any claims fees due, until the applicant has filed the copy of the previous application, within two months of the filing date (Rule 40(3)), since it is only at this point that the EPO will know how many claims there are and consequently, how many claims fees, if any, are due.
Features of a claim deemed to have been abandoned pursuant to Rule 45(3) and which are not otherwise to be found in the description or drawings cannot subsequently be reintroduced into the application and, in particular, into the claims (see J 15/88). However, applicants have the possibility to pursue by filing a divisional application any (features of a) claim that is deemed abandoned due to non-payment of the claims fee in the procedure for the grant of a patent for the parent application.