1.1 Exemption from European supplementary search

Pursuant to Art. 153(6) the ISR – or the declaration replacing it under Art. 17(2)(a) PCT – and its international publication take the place of the European search report and the mention of its publication in the European Patent Bulletin.

The effect of considering the ISR and its publication under Art. 153(6) to be equivalent to a European search report and its publication is, however, limited by Art. 153(7), which provides that a supplementary European search report must be drawn up for every Euro-PCT application unless it is dispensed with by decision of the Administrative Council. The Council may also decide that the search fee under Rule 159(1)(c) is reduced (A‑XIII, 6). Pursuant to a decision of the Administrative Council under Art. 153(7), a supplementary European search is dispensed with, and so no search fee is payable under Rule 159(1)(c) (A‑XIII, 6), if the EPO acted as ISA or as SISA in the international phase (OJ EPO 2009, 594; OJ EPO 2010, 316). The same applies if a declaration under Art. 17(2)(a) PCT and, in the case of an SISR, the declaration under Rule 45bis.5(c) PCT have been issued, since these declarations are treated as taking the place of the ISR and, where applicable, the SISR (Art. 153(6)) (B‑II, 4.3.1 and B‑II, 4.3.2).

A supplementary European search is also dispensed with for applications filed before 1 July 2005 for which the Swedish Intellectual Property Office, the Austrian Patent Office or the Spanish Patent and Trademark Office was the ISA (OJ EPO 1979, 248; OJ EPO 1995, 511; OJ EPO 2012, 212 and 219).