2.1. Beginning of "substantive examination"

Responsibility for examining the application passes from the Receiving Section to the examining division at the time when a request for examination is filed (R. 10(2) EPC). This is subject to two exceptions: (i) if the applicant has filed a request for examination before the European search report has been sent to him, then the examining division is responsible only from the time when the confirmation of the request is received by the EPO following an invitation under R. 70(2) EPC; (ii) if the applicant has filed a request for examination before the European search report has been sent to him and has also waived the right to receive an invitation to confirm under R. 70(2) EPC, then the examining division is responsible only from the time when the search report is sent to the applicant (R. 10(3), (4) EPC; Guidelines C‑II, 1 – March 2022 version).

In J 9/10 the Legal Board held that a communication pursuant to Art. 94(3) EPC on EPO Form 2001A entitled "Communication pursuant to Article 94(3) EPC" which was automatically generated by a computer and posted by a formalities officer without the involvement of an examiner appointed to the examining division did not constitute a legally effective act of the examining division and therefore could not be regarded as the beginning of "substantive examination" pursuant to Art. 10b(b) RFees 1973 (as amended by decision of the Administrative Council of 15 December 2005; now Art. 11 RFees as last amended by decision of the Administrative Council of 27 March 2020). The Legal Board noted that to ensure predictability and verifiability of the application of Art. 10b(b) RFees 1973 as amended by decision of the Administrative Council of 15 December 2005, the beginning of "substantive examination" had to be interpreted as requiring a concrete and verifiable act of the examining division as regards "substantive examination" after having assumed responsibility for the examination of the application (see also J 25/10). The Legal Board held that if a communication of a particular examining division was to be legally valid, it had to have been written on behalf of and represent the views of the members who had been appointed to that division to examine the issues forming the subject of the communication. There was, however, no indication in the file that the appointed primary examiner had actually authenticated the communication under Art. 94(3) EPC before it was despatched by the formalities officer. Therefore, the communication could not be attributed to the examining division, but only to the formalities officer whose name was indicated on EPO Form 2001A. Further, the Legal Board found that the formalities officer, although acting in good faith, had had no power to issue the communication pursuant to Art. 94(3) EPC.