3. The communication according to Rule 161

For the purpose of the proceedings before the EPO as designated/elected Office, applicants may file (voluntary) amendments within the 31-month time limit and, if desired, file (further) amendments until expiry of the time limit set in the combined communication under Rules 161 and 162. As set out below, if the EPO acted as (Supplementary) International Searching Authority, applicants may be required to file (mandatory) amendments to or comments on their application within the time limit set in the communication under Rules 161 and 162 (see E‑IX, 3.2). Whether or not a response is mandatory is clearly stated in the communication, which is therefore worded differently depending on the case (EPO Forms 1226AA and 1226BB).

The communication under Rules 161 and 162 is issued promptly once the application has entered the European phase and on condition that the international search report (ISR) is available to the EPO. This means that it is also issued if the applicant has already filed, with EPO Form 1200 or later, amendments and/or comments to form the basis for the procedure in the European phase.

The time limit set in the communication under Rules 161 and 162 is six months. This time limit cannot be extended.

After expiry of the six-month time limit, further possibilities for amending the application are limited. If a supplementary European search is carried out, the applicant always has one further opportunity to submit amendments upon receipt of the report (see E‑IX, 3.1). Amendments made after that require the consent of the examining division. By way of exception, the applicant may have the opportunity to submit amendments without requiring the consent of the examining division, namely in cases where the supplementary European search is dispensed with (see E‑IX, 3.2) and, after expiry of the period according to Rule 161(1), the examining division considers that a claimed invention or group of inventions within the meaning of Art. 82 was not searched by the EPO in its capacity as ISA or SISA. In such a situation, if a further search is carried out according to Rule 164(2)(a), the applicant may amend the application in response to the communication of the results of that search in accordance with Rule 164(2)(b) (see C‑III, 3.1 and E‑IX, 4.2).