2.2 Procedure when the EPO was the ISA 

Applicants must be given a further opportunity for interaction in Chapter II before a negative IPER is established, on condition that they have filed in due time a substantive reply to the WO‑ISA in the form of amendments and/or arguments.

Thus if, after reply to the WO‑ISA, there are still objections outstanding, before issuing a negative IPER the examiner must send:

– as a rule, a (further) written opinion (Form 408, WO‑IPEA), but: 

– if a request for a telephone consultation was filed before the (further) written opinion was issued: telephone minutes; 

– if a request for either a telephone consultation or a (further) written opinion (see GL/PCT‑EPO C‑VII, 1) was filed before the (further) written opinion was issued: a written opinion or telephone minutes,

in either case generally (see GL/PCT‑EPO C‑VII, 1) with a time limit to reply which is normally two months, in order to give the applicant a further opportunity to provide arguments and/or amendments in reply to any outstanding objections. Documents newly found during the top-up search (see GL/PCT‑EPO C‑IV, 5) are attached to the WO‑IPEA or to the telephone minutes, as appropriate.

If the applicant has not submitted any response to the negative WO‑ISA with the demand, and the top-up search in Chapter II does not reveal any new pertinent prior art, then a negative IPER, repeating the objections raised in the WO‑ISA, will be issued directly.

In the exceptional situation of a non-unitary application, where all inventions examined were found novel and inventive, but still lacking unity as the only remaining objection, a negative IPER can be sent directly without a further WO‑IPEA (see GL/PCT‑EPO C‑VIII, 3).