3.2.1 Review (Art. 25 PCT, Art. 24(2) PCT)

Under Art. 25 PCT, the EPO may decide to allow an international application deemed to be withdrawn, or not accorded a filing date, to proceed as a European application. It must first decide whether the refusal, declaration or finding within the meaning of Art. 25(1) PCT was justified under the provisions of the PCT and its Regulations (Art. 25(2) PCT). If it finds that the refusal or declaration was the result of an error or omission on the part of the receiving Office or that the finding was the result of an error or omission on the part of the International Bureau, it must, as far as effects before the EPO as designated Office are concerned, treat the international application as if this error or omission had not occurred. To obtain such a review by the EPO as designated Office, applicants must observe the two-month time limit under R. 51.1 PCT.

Pursuant to Art. 24(2) PCT, the EPO as designated or elected Office may maintain the application as a European application even if this is not required by virtue of Art. 25(2) PCT (OJ 1984, 565). The filing of a request under Art. 24(2) PCT is governed by the same requirements as a request for review under Art. 25(2) PCT, with the exception that the two-month time limit under R. 51 PCT does not apply (J 19/16).

In exercising its discretion under Art. 24(2) PCT, a designated Office is not bound by the views or actions of any of the authorities involved in the patent application's international phase. On the contrary, when acting as designated Office, the EPO has to exercise that discretion in accordance with the same rules and principles it applies in identical or comparable situations concerning direct European applications. This non-discriminatory approach is not only a fundamental principle of the PCT itself (see, for example, Art. 26 and 48(2)(a) PCT) but also a direct consequence of Art. 150(3) EPC 1973 (J 17/99). See also J 16/03.