1.1 Review and correction on request and of the EPO's own motion

The EPO is bound by the PCT, but not by the way it has been applied where that application is clearly in breach of the PCT. If the EPO as designated/elected Office finds that a decision, act or omission of the receiving Office is in breach of the PCT, it is therefore open to it to apply the PCT provisions correctly and to require that the applicant make the correction necessary to comply with the PCT requirements. This general competence is reflected in certain PCT provisions explicitly allowing the EPO to review a decision of the receiving Office, for instance Art. 25 PCT (A‑XV, 2) and Rule 82ter.1 PCT (A‑XV, 6.3).

Some PCT provisions regulate this competence of the designated/elected Office to carry out a review. An example is Rule 49ter.1(c) PCT, which allows the designated/elected Office to establish that the requirements of Rule 26bis.3 PCT for granting a request for restoration of priority were not met, and to declare accordingly that the grant decision by the receiving Office has no effect in the proceedings before it. However, such a finding requires that the designated/elected Office have "reasonable doubt" about compliance with the requirements, while the applicant must be given an opportunity to make observations (Rule 49ter.1(d) PCT). See also A‑XV, 5 on restoration of priority.

Irrespective of whether the EPO acts on request or of its own motion, it must ensure that the EPC provisions are applied to the Euro-PCT application in the same way as to a Euro-direct application. This follows from Art. 11(3) PCT, according to which the international application has the effect of a national/regional application as from the filing date. This means, for instance, that the applicant may also request a correction under Rule 139 under the same conditions as a Euro-direct applicant in the European grant proceedings.

Art. 26 PCT deals more specifically with the effect of Art. 11(3) PCT in cases where the designated/elected Office finds that the applicant has not complied with a PCT requirement. It provides that the designated/elected Office may not reject an international application on the grounds of this non-compliance without first giving the applicant the opportunity to correct the application to the extent and according to the procedure provided by its law for the same or comparable situations. Several other PCT provisions contain more specific rules on how the principles laid down in Art. 11(3) PCT and Art. 26 PCT must be applied by the designated/elected Offices: Art. 24 PCT (A‑XV, 2), Art. 25 PCT (A‑XV, 3), Art. 48 PCT (A‑XV, 3), Rule 82bis PCT (A‑XV, 3) and Rule 82ter PCT (A‑XV, 4).

Art. 48(2) PCT provides in addition that any designated/elected Office must excuse, for reasons admitted under its national law, any delay in meeting any time limit. Rule 82bis.1 PCT makes it clear that this applies to any kind of time limit, irrespective of its legal basis, that the applicant was required to meet in the international phase. Rule 82bis.2 PCT defines the word "excuse" in Art. 48(2) PCT as referring to all remedies and any other provisions allowing for the extension of time limits or for excusing a delay in meeting them. All these higher-ranking principles apply in the proceedings in the European phase in accordance with Art. 150(2) in combination with Art. 153(2) and Art. 125 (A‑XII, 1.1).

A special situation is dealt with in Art. 27(4) PCT. It provides that the designated/elected Office may apply national/regional provisions (including formal requirements) that, from the applicant's viewpoint, would be more favourable, unless the applicant insists that the PCT requirements be applied to the application. It follows from this provision that, even without any request and/or remedy, an act, omission or situation in breach of the PCT may be considered overcome by virtue of Art. 11(3) PCT and Art. 153(2). For example, if an international application is filed by a person not entitled to do so under Art. 9 PCT, the EPO as designated/elected Office may consider it a valid application by virtue of Art. 58 alone (A‑XII, 6).