5.10.4.What happens if the time limit for filing the request for examination and payment of the examination fee is not observed? 

5.10.011If the request for examination is not filed or the examination fee is not paid in due time, the application is deemed to be withdrawn. The applicant is informed of this in a communication under Rules 112(1) and 160(2) EPC. If only the examination fee was not paid in due time, the loss of rights is deemed not to have ensued if within two months after notification of this communication further processing is requested by payment of the further processing fee, which amounts to 50% of the examination fee, together with the missing examination fee (see points 5.19.001 ff).

5.10.012If the applicant neither filed the request for examination nor paid the examination fee in due time, further processing must be requested in respect of both omissions, i.e. in respect of filing the request for examination and paying the examination fee. It follows that the applicant must not only file the request for examination and pay the examination fee but also pay two fees for further processing, namely the flat fee for further processing in respect of the omitted act (i.e. the request for examination) and 50% of the late-paid examination fee.

5.10.013Since the request for examination including payment of the examination fee does not form part of the national (filing) fee (see point 5.7.001), applicants cannot request reinstatement of rights under Rule 49.6 PCT.

5.10.014If the time limit for requesting further processing has been missed (see point 5.10.011), a request for re-establishment of rights in respect of the period under Rule 135(1) EPC may be filed. The request is not deemed to have been filed until the fee for re-establishment relating to the omitted act, i.e. filing of the request for examination and/or payment of the examination fee and of the fee for further processing, has been paid. Since filing the request for examination and payment of the examination fee constitute a unitary procedural act, only one fee for re-establishment has to be paid (see points 5.19.001 ff). Attention is drawn to the further requirements under Article 122 and Rule 136 EPC for the request to be admissible and allowable.