9.4.3 Non-compliance with eligibility criteria

The EPO may conduct checks to ensure compliance with the eligibility criteria laid down in Rules 7a(3), Rule 7a(4), Rule 7a(5) and Rule 7b(1). If the checks give rise to reasonable doubt in the course of the grant proceedings as to the veracity of the declaration given by the applicant, the EPO may request appropriate evidence (Rule 7b(3)).

Should it become apparent that an incorrect declaration has been filed, the fee would not be validly paid since it was reduced unjustifiably and the application may be deemed withdrawn under Arts. 78(2), Art. 86(1), Art. 94(2), Rules 71(7), Rule 39(2) and/or Rule 160(1) (see also E‑IX, 2.1.4). The same applies if no declaration has been filed. Where applicable, the loss of rights arising from an incorrect or missing declaration may be remedied by filing a request for further processing under Art. 121 and Rule 135 (subject to making good any underpayment and paying the fee for further processing (see E‑VIII, 2)), by requesting re-establishment of rights under Art. 122 and Rule 136 (subject to making good any underpayment (see E‑VIII, 3)), or by requesting a decision under Rule 112(2) (see E‑VIII, 1.9.3).

Where a reduction under Rule 7a(3) is claimed, the EPO will systematically check whether the applicant has filed five or more European patent applications or Euro-PCT applications within a period of five years preceding the date of filing of the European patent application concerned, the date on which the divisional application concerned is filed, or, in the case of a Euro-PCT application, its date of entry into the European phase. If a reduced fee has been paid but the check shows that this cap on eligible applications per applicant has been exceeded, the applicant will be invited to pay the missing amount within a time limit of two months. If the shortfall is not paid within the time limit, the application may be deemed withdrawn. For renewal fees for European patent applications, the six-month grace period under Rule 51(2) applies so that the missing amount, including the additional fee, can still be paid within this period.