15. Late filing of claims 

To obtain a filing date, the European patent application does not have to contain any claims. The presence of at least one claim is nonetheless a requirement for a European patent application according to Art. 78(1)(c), but a set of claims can be provided after the filing date according to the procedure described below.

The EPO will check whether at least one claim is present in the application. If there is not, the EPO will issue an invitation under Rule 58 inviting the applicant to file one or more claims within two months. If the applicant fails to do so within this period, the application is refused according to Art. 90(5). The applicant is notified of this decision according to Rule 111. Further processing for failure to observe the time limit under Rule 58 is ruled out under Rule 135(2). The applicant may, however, request re-establishment according to Art. 122 and Rule 136 or may appeal.

Where the application documents as originally filed did not include at least one claim, applicants may also file claims on their own initiative after the filing date but before the EPO invites them to do so under Rule 58. In this case, the EPO does not issue a communication under Rule 58.

If the applicant does supply a set of claims in response to the invitation under Rule 58, the claims must have a basis in the application documents (description and any drawings) provided on the filing date (Art. 123(2)). This requirement will first be checked at the search stage (see B‑XI, 2.2).

If the application was filed by means of a reference to a previously filed application in accordance with Rule 40(3) and the applicant indicated on the filing date that the previously filed application's claims were to take the place of claims in the application as filed (see A‑II, 4.1.3.1), then, provided the previously filed application also contained claims on its filing date, claims were present on the filing date and no communication under Rule 58 will be sent.

The above procedure also applies to divisional applications (Art. 76(1)) and applications filed in accordance with Art. 61(1)(b).