5.9 Supplementary European search
5.9.3.Result of supplementary European search and refund of examination fee
5.9.011Where, as is usually the case, applicants have filed the request for examination before transmittal of the supplementary European search report, the EPO will invite them after transmittal of the report to indicate within a six-month time limit whether they wish to proceed further with their application. In the same communication, they will be invited to correct any deficiencies noted in the search opinion accompanying the supplementary European search report. Such a reply is mandatory if the search opinion was negative. If they fail to file a reply in such a case, their application will be deemed to be withdrawn (see points 5.9.013-5.9.014).
5.9.012If applicants wish to proceed further to examination, they must notify the EPO accordingly within the six-month time limit indicated in the communication issued by the EPO (see point 5.9.011). Within the same time limit, they may – or, as the case may be, must – comment on the supplementary European search report by filing amendments (see point 5.4.020). If they have expressly waived their right to be asked whether they wish to proceed further to examination (waiver to receive the communication under Rule 70(2) EPC; see point 5.10.005), no search opinion will be issued and competence for the application will pass to the examining division shortly after the supplementary European search report is issued. In this case, the examining division will either issue a communication under Article 94(3) EPC, replacing the search opinion, or a communication under Rule 71(3) EPC if the application is ready for grant.
5.9.013If applicants do not wish to proceed further to examination, they may actively withdraw their application or else allow it to lapse by simply not filing a reply within the time limit set in the communication under Rules 70(2) and 70a(2) EPC (see point 5.9.011). The latter will result in the application being deemed withdrawn.
5.9.015If applicants actively withdraw their application after substantive examination has begun but before expiry of the time limit for replying to the first invitation issued by the examining division under Article 94(3) EPC or, if no such invitation has been issued, before the date of the communication under Rule 71(3) EPC, the examination fee is refunded at a rate of 50%.