Chapter 5 – Euro-PCT procedure before the EPO as a designated or elected Office
5.19 Further processing and re-establishment of rights
5.19.001If a Euro-PCT application is refused or deemed to be withdrawn following the non-observance of a time limit in the European phase, the applicant may request further processing or, where further processing is not or no longer available, re-establishment of rights (see e.g. points 5.5.009, 5.5.015, 5.6.012, 5.7.014, 5.7.017, 5.8.006, 5.8.008, 5.9.020, 5.9.022, 5.10.011, 5.10.014, point 5.11.003, 5.11.009 and point 5.13.011). Requests for further processing and for re-establishment of rights are made by performing the omitted act and by paying the applicable fee.
Art. 121, 122 EPC
R. 135, 136 EPC
GL/EPO E‑VIII, 2, 3
Art. 2(1)12 RFees, first and third indents, RFees
5.19.002Omitting to take the steps necessary to enter the European phase within the 31-month time limit amounts to non-observance of several time limits. Further processing must be requested for each omitted step. The applicant is informed accordingly in a communication of loss of rights (EPO Form 1205N/EPO Form 1205A). The requests for further processing must be filed and the deficiencies remedied within two months of notification of the communication.
5.19.003For omitted procedural acts (e.g. late filing of a translation), the further processing fee is a flat rate (fee code 122). For late payments, the further processing fee amounts to 50% of the late-paid fee (fee code 123).
Separate further processing fees must be paid for each omitted act comprised in a unitary procedural act.
For example:
–If the applicant pays the filing fee, including any page fee due, after expiry of the 31-month period, the fee for further processing comprises 50% of the late-paid filing fee and 50% of the late-paid page fee (see point 5.7.014).
–If the applicant submits the request for examination and pays the examination fee after expiry of the 31-month period, the fee for further processing comprises the (flat) fee for the late-filed request and 50% of the late-paid examination fee (see point 5.10.012).
–If the applicant fails to file a sequence listing within the time limit set in the communication under Rules 30(3) and 163(3) EPC, and fails to pay the late furnishing fee within that time limit, the fee for further processing comprises the (flat) fee for the late-filed sequence listing and 50% of the late-paid late furnishing fee (see point 5.6.012).
5.19.004If the time limit for requesting further processing has expired, the applicant may request re-establishment of rights in respect of that time limit. The request is valid only if the corresponding fee is paid. Re-establishment must be requested for each time limit missed. However, for acts considered to be unitary procedural acts (see point 5.19.003) only one fee for each unitary act is due.
For example:
–If the applicant, having failed to pay the filing fee including the page fee on time, then fails to request further processing on time, only one fee for re-establishment of rights is due in respect of the filing and page fees.
–If the applicant, having failed to file the request for examination and pay the examination fee on time, then fails to request further processing on time, only one fee for re-establishment of rights is due in respect of the request for examination and the examination fee.
For an overview of the fees due for further processing and re-establishment of rights, see the table in GL/EPO E‑VIII, 3.1.3.
Attention is also drawn to the further requirements for the admissibility and the allowability of requests for re-establishment of rights, which are outlined in detail in GL/EPO E‑VIII, 3.