2. Further processing 

If the European patent application is to be refused or is refused or deemed to be withdrawn following failure to reply within a time limit vis-à-vis the EPO, the application is allowed to proceed if the applicant makes a request for further processing of the application within two months of the communication concerning either the failure to observe a time limit or a loss of rights. Further processing must be requested by payment of the prescribed fee. The omitted act must be completed within the period for making the request. The request is not deemed to have been filed until the respective fee for further processing has been paid. If the fee for further processing has been paid in due time but the omitted act has not been completed within the period for making the request, the request is inadmissible.

If several acts have the same legal basis, they form a unitary procedural act and are subject to a unitary time limit (see J 26/95). Further processing in respect of such a time limit is subject to the payment of a single fee for further processing. The amount of the single fee depends on the number and character of the omitted acts forming the unitary procedural act.

The following examples serve to illustrate this:

– Requesting examination under Art. 94(1) in conjunction with Rule 70(1) requires filing a written request for examination and paying the examination fee. As both actions have the same legal basis, they form a unitary procedural act subject to a unitary time limit. If both actions were omitted, the single fee for further processing amounts to the sum of the flat fee and 50% of the examination fee (Art. 2(1), item 12 RFees, first and third indents, RFees). If only the examination fee was not paid in due time, the fee for further processing amounts to 50% of the examination fee (Art. 2(1), item 12 RFees, first indent, RFees). If only the written request for examination was omitted, the fee for further processing amounts to the flat fee (Art. 2(1), item 12 RFees, third indent, RFees).

– The filing fee and the additional fee due if the application comprises more than 35 pages must be paid within the time limit set by Rule 38(1) and (2). As the additional fee is part of the filing fee, the payment of these two fees forms a unitary procedural act subject to a unitary time limit. Hence, one fee for further processing is due. If both fees were not paid in due time, the single fee for further processing comprises 50% of the filing fee and 50% of the additional fee (see Art. 2(1), item 12 RFees, first indent, RFees). If only one fee was not paid in due time, the single fee for further processing amounts to 50% of that omitted fee (see Art. 2(1), item 12 RFees, first indent, RFees).

An exception to the above principle concerns Rule 71(3):

– Approval of the text communicated under Rule 71(3) requires paying the fee for grant and publishing and, where applicable, claims fees (Rule 71(4)) and filing the translations of the claims within a four-month period (Rule 71(5)). As these actions have the same legal basis, they form a unitary procedural act subject to a unitary time limit. By way of exception to the principle that the single fee for further processing is computed on the basis of the number of omitted acts, Art. 2(1), item 12 RFees, second indent, RFees stipulates that only one flat fee for further processing is due in the event of late performance of any or all of the acts required under Rule 71(3), i.e. paying the fee for grant and publishing and filing the translations of the claims. If in addition claims fees were not paid in due time, the single fee for further processing amounts to the sum of the flat fee and 50% of the claims fees (see Art. 2(1), item 12 RFees, second and first indent, RFees). If only the claims fees were not paid in due time, the single fee for further processing amounts to 50% of the claims fees (Art. 2(1), item 12 RFees, first indent, RFees). For European patent applications filed before 1 April 2009 and international applications entering the European phase before that date, any page fees under Art. 2(2), item 7.2, RFees are part of the fee for grant and printing. Therefore, if only page fees were not paid in due time, the fee for further processing amounts to the flat fee (Art. 2(1), item 12 RFees, second indent, RFees).

Actions not forming a unitary procedural act are subject to time limits expiring independently of one another, each resulting in the application being deemed withdrawn. If such time limits expire on the same date, the missing of each independent time limit results in the application being deemed withdrawn (see J 26/95). This applies regardless of whether the applicant is informed of the non-performance of procedural acts in one communication or in several communications. In such cases, a fee for further processing is due in respect of each unobserved time limit. For an example, see E‑VIII, 3.1.3.

A request for further processing may also be filed between expiry of the unobserved time limit and notification of the communication concerning either the failure to observe a time limit or a loss of rights.

The department competent to decide on the omitted act also decides on the request for further processing.

Where the omitted act is a substantive response (e.g. to the extended European search report or to a communication under Art. 94(3)), a mere procedural request (e.g. a request for oral proceedings) does not qualify as completion of the omitted act and therefore cannot lead to further processing being granted (see B‑XI, 8 and C‑IV, 3).

As a general rule, further processing is the legal remedy for failure to observe a time limit during proceedings before grant, even where the consequence is a partial loss of rights (e.g. loss of priority right). However, the possibility of requesting further processing is ruled out for the periods referred to in Art. 121(4) and Rules 6(1), Rule 16(1)(a), Rule 31(2), Rule 36(2), Rule 40(3), Rule 51(2) to Rule 51(5), Rule 52(2) and Rule 52(3), Rule 55, Rule 56, Rule 56a(1) and Rule 56a(3) to Rule 56a(7), Rule 58, Rule 59, Rule 62a, Rule 63, Rule 64, Rule 112(2) and Rule 164(1) and Rule 164(2).