Under Rule 159(1)(c), the applicant must pay the filing fee, including any additional fee for pages in excess of thirty-five (see A‑III, 13.2), within a period of 31 months from the date of filing or, if priority has been claimed, from the earliest priority date. Further, under Rule 159(1)(d), he must pay the designation fee within this period, if the time limit specified in Rule 39(1) has expired earlier. Under Rule 159(1)(f), the request for examination must also be filed within this period, if the time limit specified in Rule 70(1) has expired earlier. Where a supplementary European search report needs to be drawn up, a search fee must also be paid to the EPO within this period. Failure to pay in due time the filing fee, the additional fee, the search fee, the designation fee or the examination fee, or to file the request for examination, means that the application is deemed to be withdrawn.
If the EPO finds that the application is deemed to be withdrawn for this reason, it communicates this to the applicant (Rule 160(2)).
The communication under Rule 160(2) and the communication according to Rule 112(1) are sent together in one and the same communication. In response to this notification of a loss of rights, the applicant can request further processing (see E‑VIII, 2).
Within the 31-month period for taking the steps for entry into the European phase, an applicant must pay claims fees for the sixteenth and each subsequent claim on file on expiry of that period (Rule 162(1)). Rule 162(2) allows the later payment of claims fees. It instructs the applicant to compute the number of claims that he wishes to have searched and/or examined and to ensure payment of the corresponding amount of claims fees before expiry of the six-month period under Rule 161. The wording of Rule 162(2) distinguishes between two situations in which the applicant must ensure payment of claims fees before expiry of the six-month period:
Rule 162(2), first sentence, covers the situation in which the applicant does not file amendments after expiry of the 31-month period and before expiry of the six-month period under Rule 161. In this case, the applicant must ensure that any claims fees not yet paid for the set of claims filed within the 31-month period are paid before expiry of the six-month period under Rule 161.
A Euro-PCT application X contains 27 claims on expiry of the 31-month period. The applicant pays five claims fees within the 31-month period. He must ensure that seven claims fees are paid before expiry of the six-month period under Rule 161.
Rule 162(2), second sentence, covers the situation in which the applicant files an amended set of claims after expiry of the 31-month period and before expiry of the six-month period under Rule 161. In this case, he must compute the number of claims fees due on the basis of the claims on file on expiry of the six-month period under Rule 161. Before expiry of this period, he must ensure that any claims fees are paid for the number of claims on file on expiry of this period which exceeds the number of claims for which claims fees were paid within the 31-month period.
A Euro-PCT application Y contains 27 claims on expiry of the 31-month period. The applicant pays five claims fees within the 31-month period. After expiry of the 31-month period and before expiry of the six-month period under Rule 161, the applicant files an amended set of 32 claims. The applicant must compute the number of claims fees on the basis of the claims on file on expiry of the six-month period, i.e. 32 - 15 = 17. Since he has already paid five claims fees, he must pay 12 claims fees (17 - 5 = 12) before expiry of the six-month period under Rule 161.
If there are more than 15 claims on file on expiry of the six-month period under Rule 161, any of the sixteenth and each subsequent claim for which no claims fee has been paid is deemed to be abandoned under Rule 162(4) (see also the Notice from the EPO dated 16 December 2016, OJ EPO 2016, A103).
Features of a claim deemed to have been abandoned pursuant to Rule 162(4) and which are not otherwise to be found in the description or drawings cannot subsequently be reintroduced into the application and, in particular, into the claims.