When acting as a designated Office, the EPO must not process or examine an international application before expiry of the period applicable under Art. 22 PCT (Art. 23(1) PCT). However, the EPO may, on the express request of the applicant, process or examine an international application at any time (Art. 23(2) PCT). If the International Bureau (IB) has not yet transmitted to the EPO a copy of the international application, the ISR and the WO‑ISA, the applicant may but does not have to file with the IB a request to do so. If necessary, the EPO will take care of this itself.
A request for early processing under Art. 23(2) PCT or Art. 40(2) PCT may be filed with the EPO at any time before expiry of the 31-month time limit (Art. 22(3) PCT and Rule 159(1)). The request does not require a specific wording, but applicants must clearly express that they wish the processing of their application before the EPO as designated/elected Office to commence early. Applicants using EPO Form 1200 may file a request by ticking a check box in section 12.1 (see the Notice from the EPO dated 7 July 2017, OJ EPO 2017, A74).
For the request to be effective, applicants must comply with the requirements stipulated in Rule 159(1) as if the 31-month time limit expired on the date they request early processing, i.e.: payment of the filing fee (including any additional fee under Art. 2(1), item 1a, RFees if the application comprises more than 35 pages), filing of a translation (if a translation is required under Art. 153(4)), specification of the application documents, and payment of the search fee (where a supplementary European search report has to be drawn up under Art. 153(7)). Which further requirements stipulated in Rule 159(1) must be complied with depends on the date on which early processing is requested, since the (regular) time limits for paying the designation fee (Rule 39(1)) and the renewal fee (Rule 51(1)) and for filing the request for examination and paying the examination fee (Rule 70(1)) may not have expired on the date the request for early processing is filed. Therefore, if any of these time limits is still running on that date (or, in the case of the renewal fee, if the due date according to Rule 51(1) is later than that date), the request for early processing will be effective without the requirement(s) concerned having been complied with (Art. 153(2), Art. 11(3) PCT).
If applicants wish not only the processing of the application before the EPO as designated/elected Office but also the examination of the application to start, they must have filed a valid request for examination (including payment of the examination fee), even if the time limit under Rule 70(1) has not yet expired at the date of effective entry into the European phase, since examination will be taken up only if a request for examination has been validly filed (see E‑IX, 2.5.2). Furthermore, if a request for examination is filed before the EPO has, where applicable, sent the supplementary European search report to the applicants, examination will start only upon receipt of an indication from them that they wish to proceed further with the application and, if required, a response to the extended European search report (see E‑IX, 2.5.3).
In the case of a correction of erroneously filed elements or parts under Rule 20.5bis(d) PCT by the receiving Office, which is not effective in proceedings before the EPO as designated/elected Office in accordance with the EPO's declaration of incompatibility (Rule 20.8 PCT), applicants who want to make use of the abridged procedure (by requesting that the correct application documents be disregarded or by indicating that they wish to pursue the application containing the correct application documents with the date of receipt of those application documents as the filing date – see C‑III, 1.3) must inform the EPO accordingly at the time the request for early processing is validly filed or at the latest before the communication under Rules 20.8(c) PCT and Rules 82ter.1(c) PCT and Rules 82ter.1(d) PCT is issued.
As from 1 November 2017, the automatic debiting procedure may be used for effecting payment of the fees falling due on filing the request (see Annex A.1 and Annex A.2 to the ADA, Supplementary publication 5, OJ EPO 2017). However, automatic debiting can only be performed if the EPO can establish whether or not a page fee needs to be included as part of the filing fee (see A‑III, 13.2). This is only possible if the EPO has access to the documents referred to in Art. 20 PCT, i.e. if:
If none of the above documents is available to the EPO on the day the request for early processing is filed, applicants are advised to choose another means of payment. Otherwise the fees due will be debited on the date of receipt of the documents referred to in Art. 20 PCT from the International Bureau (Rule 47.4 PCT) and the date on which the request for early processing takes effect will be postponed to that date.
If pursuant to Rule 159(1)(h) a certificate of exhibition must be filed and this requirement is not met, this will not prevent the request for early processing from being effective, but it will affect the prior art that the EPO takes into account in the European phase.
If on the date the request for early processing is filed any necessary requirement is not complied with, the request will be effective only as from the date on which all necessary requirements have been complied with.
If on the date the request for early processing is filed all necessary requirements for entry into the European phase are complied with, the request is effective and the Euro-PCT application will as from that date be processed in the same way as a Euro-PCT application which has entered the European phase by fulfilling the necessary requirements of Rule 159(1) within the 31-month time limit and without a request for early processing having been filed. On that date the international phase is thus terminated in respect of the EPO as designated/elected Office (J 18/09, Reasons 13). Moreover, since by filing an effective request for early processing the processing ban is lifted, as from that date it is no longer possible to claim the 31-month time limit under Rule 159(1). For details see the Notice from the EPO dated 21 February 2013, OJ EPO 2013, 156.