9. Claims fee 

A European patent application containing more than 15 claims at the time of filing the claims (see the paragraph below) incurs a claims fee in respect of each claim in excess of that number. For applications filed and international applications entering the regional phase on or after 1 April 2009, a higher amount is payable for each claim in excess of 50. The claims' order is their sequence at their time of filing. If an application contains more than one set of claims, Rule 45 only applies to the set of claims containing the highest number of claims. If, as a result of claims having been deleted owing to non-payment of claims fees, the number of claims remaining in the set that originally incurred the fees falls below that of another set, then the number of claims in the latter set has to be reduced to the same number as that remaining in the set originally incurring the fees (see J 8/84). The claims fees must be paid within one month of filing the claims.

Where correct claims are filed under Rule 56a(3) or Rule 56a(4) (see A‑II, 6), the claims fee is calculated on the basis of the set of claims first filed.

The claims may be filed at the following stages:

(a)on the filing date or on the date on which the divisional application is filed (see A‑II, 4.1.5 and A‑IV, 1.2.1)

(b)after the filing date, in a timely response to a communication from the EPO indicating their absence under Rule 58 (see A‑III, 15)

(c)after the filing date, by applicants on their own initiative before the EPO sends a communication according to Rule 58 (see A‑III, 15).

Consequently, the claims fees must be paid within one month of whichever of the above dates of receipt applies.

If the claims fees have not been paid in due time, they may still be validly paid within a non-extendable grace period of one month from notification of a communication under Rule 45(2) pointing out the failure to observe the time limit. The applicant cannot waive this communication. If a claims fee is not paid within the grace period, the corresponding claim is deemed abandoned and the applicant is notified accordingly. The applicant cannot waive the communication under Rule 112(1) noting the deemed abandonment of claims under Rule 45(3). If the claims fees paid are insufficient to cover all the claims incurring fees (i.e. claim 16 onwards), and if when payment was made no indication was given as to which claims were covered by the fees paid, then the applicant is requested to specify which claims incurring fees are covered by the claims fees paid. The Receiving Section notifies the search division of claims that are deemed abandoned. Any claims fee duly paid is refunded only in the case referred to in Rule 37(2) (see A‑II, 3.2, last paragraph).

In cases where:

(i)the application was filed by reference to a previously filed application (see A‑II, 4.1.3.1) and

(ii)the applicant indicates on filing that the claims of this previously filed application take the place of claims in the application as filed, 

the claims fees are due within one month of the filing date (since the claims of the previously filed application are effectively present on the filing date). However, the EPO will not send the applicant a communication under Rule 45(2) with an invitation to pay any claims fees due until the applicant has, within two months of the filing date (Rule 40(3)), filed the copy of the previously filed application, since it is only at this point that the EPO will know how many claims there are and consequently how many claims fees, if any, are due.

Features of a claim deemed abandoned under Rule 45(3) and not otherwise to be found in the description or drawings cannot subsequently be reintroduced into the application and, in particular, into the claims (see J 15/88). However, by filing a divisional application, applicants can pursue any (features of a) claim deemed abandoned due to non-payment of the claims fee in the procedure for the grant of a patent for the parent application.

Regarding Euro-PCT applications entering the European phase, see E‑IX, 2.1.3 and E‑IX, 2.3.8.