2. Subject-matter which the ISA is not required to search and examine
Art. 17(2)(a)(i) and Art. 34(4)(a)(i) together with Rules 39 and 67.1 are the equivalents of Art. 52(2), (3) EPC and Art. 53(b), (c) EPC concerning the exclusion from patentability of non-technical inventions, programs for computers, methods of doing business, medical methods and the exception to patentability for plant or animal varieties or essentially biological processes for the production of plants and animals, respectively. Since the PCT procedure does not lead to a grant, subject-matter which would be excluded from patentability under the EPC is identified as subject-matter for which the ISA and/or the IPEA is not required to carry out search and international preliminary examination.
The criteria applied for the decision not to perform an international search are the same as for the European procedure. This means that the discretion of an ISA not to search subject-matter set forth in Rule 39.1 is exercised by the EPO as ISA only to the extent that such subject-matter is not searched under the provisions of the EPC.
For subject-matter which the ISA is not required to search under Art. 17(2)(a)(i) and where, as a consequence, an incomplete search report will be issued, the restriction should always be indicated both in the search report and in the WO‑ISA.
Where the subject-matter of all claims constitutes a subject excluded from the search, a declaration of non-establishment of the international search report is issued pursuant to Article 17(2)(a) on Form PCT/ISA/203, indicating the reasons. A written opinion is established, even though, in the absence of a search, it cannot address the questions of novelty and inventive step and may not be able to address other questions, such as that of industrial applicability. The written opinion should contain full reasoning as to why the search is not possible.