If the EPO did not act as ISA or SISA for the application it will upon entry into the European phase draw up a supplementary European search report (see point 577). Up to expiry of the time limit set in the Rule 161 EPC/Rule 162 EPC communication (EPO Form 1226CC) the applicant may file ("voluntary") amendments. All amendments filed within the time limit set in the communication will be taken into account in drawing up the supplementary European search report and the search opinion (see points 577, see points 579). This means that the supplementary European search will be based on the last set of claims filed up to expiry of this time limit for which any claims fee due has been paid (see point 617). If the applicant does not wish to wait for the end of the six-month time limit under Rules 161(2) and 162 EPC for processing to start, he may request the immediate start of the supplementary search by explicitly waiving his right to use the part of the six-month period that has not yet expired at the date the waiver is received.
After issuance of the supplementary European search report the applicant may, first of all, comment on both the report and the ("positive") search opinion and file ("voluntary") amendments to the description, claims and drawings within the period specified in the communication under Rules 70(2) and 70a(2) EPC for indicating whether he wishes to proceed further with the application.
Secondly, if any deficiencies are noted in the search opinion, the applicant will be required under Rule 70a(2) EPC to respond to the objections made. The application will be deemed withdrawn if the applicant does not submit a substantive reply to the communication under Rule 70a(2) EPC ("mandatory response"). The loss of rights can be remedied with further processing.
Date retrieved: 30 December 2018