2.3 Instructions in Chapter A‑III ("Examination of formal requirements")
2.3.8 Claims fee
The time limit for paying the claims fee referred to in A‑III, 9 is 31 months from the date of filing or, if priority has been claimed, from the earliest priority date (Rule 162(1)).
If they have not been paid by then, under Rule 162(2), they may still be paid within the six-month period under Rule 161(1) and (2). Rule 162(2) distinguishes between two situations in which the applicant must ensure payment of claims fees before expiry of the six-month period:
Rule 162(2), first sentence, covers the situation in which the applicant does not file amendments after expiry of the 31-month period and before expiry of the six-month period under Rule 161. In this case, the applicant must ensure that any claims fees not yet paid for the set of claims filed within the 31-month period are paid before expiry of the six-month period under Rule 161.
Example:
A Euro-PCT application X contains 27 claims on expiry of the 31-month period. The applicants pay five claims fees within the 31-month period. They must ensure that seven claims fees are paid before expiry of the six-month period under Rule 161.
Rule 162(2), second sentence, covers the situation in which the applicants file an amended set of claims after expiry of the 31-month period and before expiry of the six-month period under Rule 161. In this case, they must compute the number of claims fees due on the basis of the claims on file on expiry of the six-month period under Rule 161. Before expiry of this period, they must ensure that any claims fees are paid for the number of claims on file on expiry of this period which exceeds the number of claims for which claims fees were paid within the 31-month period.
Example:
A Euro-PCT application Y contains 27 claims on expiry of the 31-month period. The applicants pay five claims fees within the 31-month period. After expiry of the 31-month period and before expiry of the six-month period under Rule 161, they file an amended set of 32 claims. The applicants must compute the number of claims fees on the basis of the claims on file on expiry of the six-month period, i.e. 32 - 15 = 17. Since they have already paid five claims fees, they must pay 12 claims fees (17 - 5 = 12) before expiry of the six-month period under Rule 161.
If there are more than 15 claims on file on expiry of the six-month period under Rule 161, any of the sixteenth and each subsequent claim for which no claims fee has been paid is deemed to be abandoned under Rule 162(4) (see also the notice from the EPO dated 16 December 2016, OJ EPO 2016, A103).
Where a claims fee is not paid in due time, the claim concerned shall be deemed to be abandoned. The loss of rights may be remedied by a request for further processing (see E‑VIII, 2). Features of a claim deemed to have been abandoned pursuant to Rule 162(4) and which are not otherwise to be found in the description or drawings cannot subsequently be reintroduced into the application and, in particular, into the claims.