Search for conflicting European applications 

The examiner should make a search for any additional conflicting European applications falling within the area defined by Art. 54(3), unless this was already covered by the search report.

This is because as a general rule the search files will not be complete in respect of such material at the time the main search is made. Since priority dates claimed (if any) may not be accorded to all or part of the application but may be accorded to the appropriate part of a conflicting application (see F‑VI, 2.1), this search should be extended so as to cover all European applications published up to eighteen months after the filing of the application under consideration. On condition that the priority claim is valid for the whole content of the patent application under examination, the top-up search may exceptionally be performed at the earliest 18 months from the priority date. If examiners are the examiner is unable to complete this "topping-up" search at the time the search opinion or the first communication under Art. 94(3) is prepared, they he should ensure that such search is completed before the application is reported to be in order for the grant of a patent. In the rare case in which the application is found to be in order before this search can be completed (e.g. due to a request for accelerated prosecution of an application not claiming priority, "PACE", see the Notice from the EPO dated 4 May 2010, OJ EPO 2010, 352), the grant of a patent should be postponed until the topping-up search can be completed (T 1849/12).

In addition to retrieving Art. 54(3) documents which were not available at the time of the original search, the top-up search takes into consideration, inter alia, potentially relevant prior art cited by other patent offices on applications belonging to the same patent family as the application under examination at the EPO, and therefore needs to be performed for any file at the start and end of examination.

In the framework of the refund of examination fees (see A‑VI, 2.5), the launch of a top-up search is triggered at the start of examination. This creates a marker which serves as evidence in the file that the examining division has started its substantive work.

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