With decision dated 29 June 2016^[ 1 ], 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(a) in full if the European patent application is withdrawn, refused or deemed to be withdrawn before substantive examination has begun;

(b) at a rate of 50% if the European patent application is withdrawn after substantive examination has begun and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."

Article 11(a) RFees

Article 11(a) RFees as amended provides that if the application is withdrawn, refused or deemed to be withdrawn before substantive examination has begun, the examination fee is refunded in full – instead of at the previous rate of 75%.

To enable applicants to fully benefit from this refund, for certain files and if operationally possible the Office will inform them, at least two months beforehand, of the date on which it intends to start substantive examination.

This information letter commits the Office to not starting substantive examination before the date indicated, although it may of course start later. Applicants will get a full refund of the examination fee if their application is withdrawn, refused or deemed to be withdrawn before the date on which substantive examination begins. This date is recorded, and is shown in the European patent register. ^[ 2 ]

Article 11(a) RFees as amended applies to all European patent applications which are withdrawn, refused or deemed to be withdrawn on or after 1 July 2016.

Article 11(b) RFees

Under Article 11(b) RFees as amended, 50% of the examination fee is refunded if the application is withdrawn before expiry of the time limit for replying to the first examining division communication under Article 94(3) EPC. Applicants will get this refund if they actively withdraw their application, but not if it is refused or deemed withdrawn after substantive examination has begun.

Communications under Article 94(3) EPC are sent if examination reveals that the application or the invention to which it relates does not meet the requirements of the EPC. Invitations pursuant to Rule 137(4) EPC, and minutes of consultations by phone or in person sent together with an invitation to remedy deficiencies in the application, refer to the possibility of deemed withdrawal under Article 94(4) EPC; they too count as communications under Article 94(3) EPC. So do communications on "Consideration of the 'completely contained' criterion regarding missing parts of description and/or missing drawings subsequently filed pursuant to Rule 56(3) EPC".

In contrast, communications addressing purely formal deficiencies in the application documents and issued by formalities officers as part of the duties entrusted to them under Rule 11(3) EPC,^[ 3 ] even if issued on the basis of Article 94(3) EPC, do not constitute communications under Article 94(3) EPC "issued by the Examining Division proper". Likewise, communications issued on some other legal basis, even by the examining division itself, have no bearing on the period for a withdrawal qualifying for the 50% refund. This applies in particular to communications under Rule 164(2)(a) EPC, and to those inviting applicants to file translations under Rule 53(3) EPC or provide information on prior art under Article 124 EPC.

As a consequence, if any of these communications is sent as first communication in examination, applicants may still benefit from the 50% refund of the examination fee in case of withdrawal until such time as the examination division proper has issued the first communication under Article 94(3) EPC.

In cases of direct grant, i.e. where no communication under Article 94(3) precedes the communication under Rule 71(3) EPC, the 50% refund possibility exists until the day before the date on which the examining division issues the communication under Rule 71(3) EPC, that date being the one printed on it. Thus, if the Office receives the declaration of withdrawal on the date of the communication pursuant to Rule 71(3) EPC, the applicant will not get the 50% refund.

A withdrawal made conditional on the 50% refund will generally be possible. ^[ 4 ]

Article 11(b) RFees as amended applies to all European patent applications for which substantive examination starts on or after 1 November 2016.