4.1.4
Deficiencies 

If the EPO (Receiving Section) notes either of the following deficiencies:

– 
Rule 40(1)(a) – no indication that a European patent is sought, or
– 
Rule 40(1)(c) – no description or reference to a previously filed application,

either of which prevents the application being accorded a date of filing, it communicates this to the applicants and invites them to remedy the deficiency it within a non-extendable period of two months from of notification of a the communication under Rule 55. If the requirements of Rule 40(1)(a) or Rule 40(1)(c), as applicable, are not met at the end of this period, the application will not be dealt with as a European patent application. The EPO will notify the applicant accordingly under Rule 112(1). In reply, the applicant may file a request for a decision under Rule 112(2) (see E‑VIII, 1.9.3) or request re-establishment of rights under Art. 122 and Rule 136 (see E‑VIII, 3).

If the applicants do not remedy the deficiency in due time they are informed that the application will not be dealt with as a European application. Any fees which have been paid are refunded.

If none of the available means of redress is filed on time, any fees paid are refunded. If the applicant wishes to pursue a European patent application, all documents relating to the purported European patent application will have to be re-filed. Any such newly filed European patent application will be accorded as the date of filing the date on which all the requirements of Rule 40 are fulfilled.

Deficiency under Rule 40(1)(b)

In the event that the information concerning the applicants is missing or does not enable the EPO to contact them (Rule 40(1)(b)), a communication concerning the deficiency cannot be sent. The European patent application will not come into existence unless the applicants correct this deficiency of their own motion within two months of the date of receipt of the original documents. In this case, the date of filing is the date on which all the requirements of Rule 40 are met.

In the event that the information concerning the applicants is missing or does not enable the EPO to contact them (a deficiency according to Rule 40(1)(b)), no such communication is sent. However, if the applicants correct this deficiency of their own motion within two months of the date of receipt of the original documents, then the date of filing is the date on which all requirements of Rule 40 are met. If the requirements of Rule 40 are not met at the end of this period, the application will not be dealt with as a European patent application. The EPO will notify the applicant under Rule 112(1), and the applicant may then apply for a decision under Rule 112(2) (see E‑VIII, 1.9.3) or request re-establishment of rights according to Art. 122 and Rule 136 (see E‑VIII, 3). In the absence of any allowable means of redress, all documents relating to the purported European patent application will have to be re-filed if the applicant wishes to pursue a European patent application. Any such newly filed European patent application will be accorded the date on which all requirements of Rule 40 are fulfilled as the date of filing.

Filing by reference to a previous application 

Where the application is filed by reference to a previously filed application and the EPO (Receiving Section) notes that any of the following information is missing:

(i)
the filing date of the previous application 
(ii)
its file number 
(iii)
the office where it was filed 
(iv)
an indication that this reference replaces the description and any drawings 

then it proceeds as above and invites the applicant to remedy the deficiency within a two-month time limit (Rule 55). If the applicant does not remedy the deficiencies in due time, the application is not treated as a European application.

If the applicant does not provide the certified copy of the previously filed application within two months of filing the application (Rule 40(3)) and this is not already available to the EPO (see A‑II, 4.1.3.1), then a communication according to Rule 55 will be sent to the applicant, requesting that the certified copy be filed within a non-extendable period of two months. If the applicant does not provide the certified copy in due time, the application is not treated as a European application. Where a translation of the application is required and this is not provided within the above time limit, the procedure given in A‑III, 14 is followed. The filing date is unaffected by a missing translation.

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