5.4 Application documents on which the procedure before the EPO as designated/elected Office is based (Form 1200, Section 6)
5.4.6.Amendments and the Rule 161/162 communication if no supplementary European search is carried out
5.4.024If the EPO has performed a search for an international application in its capacity as ISA or SISA, it will not carry out a supplementary European search upon entry into the European phase (see point 5.9.001), and any amendments filed within the time limit set in the Rule 161 EPC/Rule 162 EPC communication will serve as the basis for examination.
5.4.025If the EPO as ISA made any negative finding and drew up a "negative WO‑ISA" or, where the EPO also acted as IPEA, a "negative IPER" or made "objections" in the explanatory notes on the SISR ("negative SISR"), the applicant is required under Rule 161(1) EPC to respond to this finding on entry into the European phase or, at the latest, in the response to the Rule 161 EPC/Rule 162 EPC communication ("mandatory response").
5.4.026If a response is mandatory, the applicant must respond to the Rule 161 EPC/Rule 162 EPC communication within the six-month time limit set therein. A response is not mandatory if a substantive response has already been submitted before the Rule 161 EPC/Rule 162 EPC communication is issued. For the purpose of Rule 161(1) EPC, new amendments filed on entry into the European phase and up to the time the Rule 161 EPC/Rule 162 EPC communication is issued are held to constitute a response on condition that the applicant has indicated – preferably in Box 6 of Form 1200 – that they form the basis for prosecution of the application in the European phase. Whether or not a response is mandatory is clearly indicated in the Rule 161 EPC/Rule 162 EPC communication (see point 5.4.012).
5.4.027Under the same conditions as for amendments made on entry into the European phase or thereafter, but subject to certain requirements set out in detail in the Guidelines, any amendments made under Article 19 PCT and/or Article 34 PCT and maintained for the processing of the application in the European phase will constitute a response.
5.4.028If a "mandatory response" is not filed in due time, the application is deemed withdrawn under Rule 161(1) EPC. Further processing may be requested.
5.4.029Further, if the EPO acted as ISA, SISA or IPEA in the international phase, and regardless of whether the EPO in the international phase made any negative finding (see point 5.4.025), applicants have the right to submit (further) comments on the WO‑ISA, IPER and SISR and to file (further) voluntary amendments as they see fit within the time limit set in the Rule 161 EPC/Rule 162 EPC communication.
5.4.030All comments and amendments validly filed by applicants on a mandatory or voluntary basis within the six-month time limit set in the Rule 161 EPC/Rule 162 EPC communication will be taken into account in the examination proceedings. This means that examination will be based on the last set of claims filed up to expiry of this time limit for which any claims fees due have been paid (see points 5.11.004 ff). If applicants do not wish to wait until expiry of the six-month time limit under Rules 161(1) and 162 EPC for examination to start, they may request the immediate start of examination by explicitly waiving the right to use the remainder of the six-month period.