3. Review under Article 24 PCT and excuse of delays under Article 48(2) PCT

Pursuant to Art. 24(2) PCT, the EPO as designated/elected Office may maintain the application as a European application even if this is not required by virtue of Art. 25(2) PCT (OJ EPO 1984, 565, Reasons 4).

Applicants filing a request for review under Art. 24(2) PCT must meet the same requirements as for a request for review under Art. 25(2) PCT, except that the two-month time limit under Rule 51.1 and 51.3 PCT does not apply (J 19/16). This means that the time limit for making a request under Art. 24(2) PCT is governed by the applicable EPC provisions.

Art. 24(2) PCT may be applied where the international application was withdrawn or is deemed to be withdrawn due to an error or oversight on the applicant's part. In particular, it can be applied in combination with Art. 48(2) PCT, which requires that the EPO as designated/elected Office excuse, for reasons admitted under its law, any delay in meeting any time limit (A‑XV, 1.3). The request may have to be combined with a request for the grant of a remedy under the EPC, such as a request for further processing (Art. 121) or for re-establishment of rights (Art. 122). The applicant must decide what remedies are most appropriate for overcoming the loss of rights, considering it as if it were the result of non-observance of the (most comparable) time limit under the EPC.

The review procedure under Art. 24(2) PCT may also be used where a PCT requirement is not also a requirement under the EPC. A‑XII, 6.1 gives the example of where an international application was not accorded a filing date, because the applicant was not entitled to file an international application under Art. 9 PCT, whereas there are no equivalent entitlement requirements under the EPC (Art. 58). Another example is the case where an international application was filed without any claims: under Art. 11 PCT, the application cannot be accorded a filing date until such time as at least one claim is filed, whereas a lack of any claims does not preclude the accordance of a filing date under the EPC (Rule 40).

The remedies available in the proceedings before the EPO as designated/elected Office include not only further processing (Art. 121) and re-establishment of rights (Art. 122) but also any others whereby time limits can be extended or delays in meeting them can be excused, for instance under Rules 133 and 134(5) EPC (Rule 82bis.2 PCT) (A‑III, 6.6, E‑VIII, 2-3, 5, 1.6.2.2 and E‑VIII, 6).