OJ 2016, A48 - Examination division proper

Amendment Article 11 Rfees

Article 11 of the Rules relating to Fees (RFees) has been amended to read as follows:

"The examination fee provided for in Article 94, paragraph 1, of the Convention shall be refunded:
(a) in full if the European patent application is withdrawn, refused or deemed to be withdrawn before substantive examination has begun;
(b) at a rate of 50% if the European patent application is withdrawn after substantive examination has begun and

• before expiry of the time limit for replying to the first invitation under Article 94, paragraph 3, of the Convention issued by the Examining Division proper or,
• if no such invitation has been issued by the Examining Division, before the date of the communication under Rule 71, paragraph 3, of the Convention."

Comments

• This new rules introduces the concept of the "Examination division  proper". This is intended to distinguish from communications under Article 94(3) EPC issued by formalities officers. However, " normal"  communications under Article 94(3) EPC are also signed by the examiner on behalf of the Examining Division.  It would have been more precise to require that the communication under Article 94(3) EPC is signed by a technically qualified examiner (as mentioned in Article 18(2) EPC.
• It is not entirely clear why no 50% refund is available for withdrawal after a Rule 71(3) Communication in those cases that no Article 94(3) Communication is issued.

Posted on 9 July 2016.