2.6 Real-time interaction on a document – Sharedshared area

MyEPO Portfolio provides a secure space where the first member and applicant can jointly edit an uploaded document during a consultation, facilitating discussions on how to amend the application documents to overcome objections (see OJ EPO 2023, A59). The applicant or representative accesses the Shared area from MyEPO, which provides them with a view similar to that of the examiner. Both the applicant and the examiner can upload documents to the Sharedshared area and make changes prior to and in preparation for the consultation. The Sharedshared area provides access to the latest version of the text, enabling real-time interaction between both sides while maintaining confidentiality. After the consultation, the relevant parts of the final document in the shared area will be cited in or annexed to the minutes (see C‑VII, 2.4).

Changes made by the examiner are merely suggestions to assist the applicant and are not binding (B‑XI, 3.8). The responsibility for determining the text of an application and defining the subject-matter for which protection is sought remains with the applicant (Art. 113(2)).

Documents uploaded to or jointly edited in the shared area are not deemed to have been filed with or notified by the EPO. Amended documents may be formally submitted via the EPO's online filing tools or, if submitted during the consultation, via email (C‑VII, 3). Alternatively, the examiner may propose the agreed amendments in a subsequent communication under Rule 71(3) (see C‑V, 1.1).

The legal and procedural framework for consultations involving the use of the shared area remains the same as that applicable to all personal consultations (see C‑VII, 2.1 to C-VII, 2.5). In particular, any agreement reached is ultimately subject to the views of the other members of the examining division, and any changes and statements made before and during a consultation must be confirmed in writing to be procedurally effective. Otherwise, they are not legally binding and not effective for meeting a time limit.

The use of the Shared area is to be seen in the context of a personal consultation and not as a standalone functionality. The legal and procedural framework for consultations using the Shared area remains the same as that applicable to all personal consultations (see C‑VII, 2.1 to C-VII, 2.5). Accordingly, the consulted person must be a person entitled to act for the applicant before the EPO (see C‑VII, 2.2). Any agreement reached is ultimately subject to the views of the other members of the examining division, and any changes and statements made before and during a consultation must be confirmed in writing to be procedurally effective. Otherwise, they are not legally binding and not effective for meeting a time limit (see also C-VII, 2.3). Changes made by the examiner are merely suggestions to assist the applicant and are not binding (B‑XI, 3.8). The responsibility for determining the text of an application and defining the subject-matter for which protection is sought remains with the applicant (Art. 113(2)).

The examiner may propose a consultation involving the use of the Shared area in the following procedural scenarios in particular:

–Consulting the applicant before proposing amendments in a Rule 71(3) communication (see C‑V, 1.1)

–Where the examiner has particular wording suggestions to overcome objections: the suggested wording may be incorporated in the document, together with a short reasoning in comments or the chat, and shared with the applicant ahead of the consultation. Even if the applicant does not adopt the suggestion, the wording and the reasoning may help them to understand the objections better and enable them to provide a more informative response explaining why they consider other matter to be patentable or feel entitled to have a broader scope of protection than suggested. As usual, it is recommended to discuss the suggestion with at least the chair before the consultation.

–Where submissions in response to the summons are close to an acceptable form but changes are still needed before cancelling the oral proceedings and the examiner has specific suggestions for this.

Instead of sending a document with amendment proposals by email in preparation for the consultation, the document could be uploaded to the Shared area.