1. General

The EPO as designated/elected Office will first check whether all formal requirements for the start of the European phase processing are met: it will establish both its competence to process the application (A‑XII, 3) – at the latest on expiry of the 31-month period (A‑XII, 3.2) – and compliance with the applicable minimum requirements for entry into the European phase (A‑XII, 4.3). It will then issue the combined communication under Rules 161 and 162 – usually referred to in the following as "the communication under Rules 161 and 162" – inviting the applicant to file amendments and to pay any claims fees due within a set six-month period.

A‑XIV, 2.1 contains general information on the right to amend under Rule 161(1) and (2) respectively. In its sub-sections the following aspects are discussed: the difference between voluntary and mandatory amendments
(A‑XIV, 2.1.1), the formal requirements for amendments (A‑XIV, 2.1.2), and the further possibilities of amending the application at a later stage in the grant proceedings (A‑XIV, 2.1.3).

The EPO issues different versions of the communication under Rules 161 and 162 depending on whether it is based on Rule 161(1) or Rule 161(2) and, for those issued under Rule 161(1), whether the WO‑ISA, SISR or IPER was positive or negative (A‑XIV, 2.1.2).

A‑XIV, 2.2 deals with the right to pay claims fees under Rule 162.

A‑XIV, 3 sets out the procedure under Rule 161(1), which applies where the EPO acted as (S)ISA and, if a demand for this was filed, as IPEA. In these cases, a European supplementary search is dispensed with (A‑XIV, 1.1). This means that, so long as no formal requirement stands in the way, the application is forwarded to the examining division for substantive examination (A‑XIV, 6) on expiry of the six-month period under Rules 161(1) and 162. An invitation under Rule 164(2) will not be issued for any claimed invention or group of inventions within the meaning of Art. 82 that was searched by the EPO in its capacity as (S)ISA or for which a declaration under Art. 17(2) PCT or Rule 45bis.5(g) PCT was issued. However, the applicant may file arguments or amendments to overcome these reasons up to expiry of the six-month period under Rules 161(1) and 162, and thereby obtain an additional search as further set out in A‑XIV, 3.

A‑XIV, 4 sets out the procedure under Rule 161(2), which applies in all cases where a supplementary European search report must be drawn up, i.e. for any Euro-PCT application for which the EPO did not act as (S)ISA (A‑XIV, 1.1). If a supplementary European search has to be performed, payment of the search fee under Rule 159(1)(c) is a minimum requirement for effective entry into the European phase (A‑XIII, 6). If on expiry of the six-month period under Rules 161(2) and 162, the formalities officer finds that no formal requirement stands in the way, the application is forwarded to the search division for search (A‑XIV, 5).

Rule 164 provides the applicant with an opportunity to pay, on invitation and within a two-month period, a further search fee for any claimed invention or group of inventions within the meaning of Art. 82 which has not been searched by the EPO as (S)ISA in the international phase but which is claimed in the set of claims available to the EPO on expiry of the six-month period for filing amendments under Rules 161 and 162. This opportunity is available both where a supplementary European search is to be carried out under Rule 164(1) and where the supplementary European search is dispensed with in the examination proceedings under Rule 164(2). See A‑XIV, 5.1 for the procedure under Rule 164(1) and A‑XIV, 6.2 for the procedure under Rule 164(2) in examination.