7.2 Waiving the right to the communication under Rules 161 and 162

The EPO must respect the six-month period laid down in Rules 161 and 162 for making amendments and paying any claims fees due (A‑XIV, 2.2). It therefore cannot start drawing up the supplementary European search report (A‑XIV, 5) or start substantive examination (A‑XIV, 6) before expiry of the six-month period under Rules 161 and 162. However, in order to expedite the European grant proceedings, applicants may consider waiving their right to the communication under Rules 161 and 162 (OJ EPO 2011, 354). Under the conditions set out in A‑XII, 7.2.1, the right to benefit from the remainder of the six-month period may also be waived.

Waiving any rights – in this case the right to file (further) amendments and pay (further) claims fees after the effective date of the waiver – must be explicit. The waiver may be filed by selecting the appropriate box in EPO Form 1200. If the waiver is effective, no communication under Rules 161 and 162 is issued and, after formalities examination, the application proceeds directly to search (A‑XIV, 5) or to examination (A‑XIV, 6). In addition, as set out below, applicants may also waive their right to the remainder of the six-month period after the communication has been issued.

For the waiver to be effective, the applicant must have fulfilled all requirements under Rule 161 and Rule 162 for the application to proceed to the next phase of the European grant procedure without the communication being issued. This means that the applicant must have:

–filed a substantive response to the WO‑ISA, SISR or IPER established by the EPO if, in the absence of such a response, the EPO would issue an invitation to do so under Rule 161(1) (mandatory response) (A‑XIV, 3), and

–paid any claims fees due under Rule 162 for the last set of amendments indicated as the basis for the European grant proceedings at the time the waiver is filed (A‑XIV, 2.2).

Applicants must not pay any claims fees by automatic debit order as they will then not be debited and considered paid until the last day of the six-month period under Rule 162(2). Instead, they must already pay them by another payment method on entry into the European phase, including, in cases of a request for early entry, on that earlier entry.

Where these requirements are fulfilled, the EPO can establish that the applicant is not interested either in filing (further) amendments under Rule 161 or paying (further) claims fees for amendments made up to the expiry of the time limit in Rule 162(2) (A‑XIV, 2.2).

Where the right to the communication under Rules 161 and 162 has not been validly waived, this communication will be issued and the application will not be processed until after expiry of the six-month period, even if a request under the PACE programme has been filed (A‑XII, 7.4; E‑VIII, 4). See also OJ EPO 2015, A94.