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Examination procedure
Applicants can file a request for examination up to six months after the European Patent Bulletin mentions publication of the search report. In the examination phase, the examiner examines whether the application and invention meet the requirements of the European Patent Convention (EPC) and whether the invention is patentable in light of the search report issued in the search phase.
The examination procedure is made up of the following steps:
1. Setting up the examining division
Examiners work in three-member examining divisions. They consist of the examiner who performed the search (first member) and two other examiners (second member and chair).
2. Communicating with the applicant
The examining division might decide to grant a patent straight away – provided all three members agree to do so. It then sends the applicant the text of the patent it intends to grant, including any amendments it has made, and the procedure normally ends.
If the examining division has objections to granting a patent, it either sends the search opinion written during the search phase to the applicant or issues a different communication, in both cases requesting a reply by a certain deadline.
If the applicant replies, the application is re-examined to check whether the objections have been overcome, either by amendments or by explanations of why the objections were unfounded. There are three possible outcomes:
- If the objections have been overcome, the lead examiner proposes granting a patent.
- If the objections have not been overcome, the application is refused, a further communication is sent to the applicant or oral proceedings are scheduled.
- If the amendments are impermissible, a further communication may be sent or oral proceedings may be scheduled.
Explanations
Replies by applicants are normally made in writing, but a case may also be discussed in a personal interview between the applicant and the examining division.
Oral proceedings can be requested at any time and are intended to result in either the grant of a patent or a refusal of the application.
3. Communicating the decision
If the examining division decides to grant a patent, the text of the patent it intends to grant, including any amendments it has made, is sent to the applicant and the procedure normally ends.
If the examining division decides to refuse the application, it writes a reasoned decision, which is open to appeal.
If the application is abandoned, the examining division takes no action.
4. Concluding the procedure
After the applicant is sent the text of the patent which the examining division intends to grant, they have to complete various formalities (pay fees, file translations, etc.).
They may still request minor amendments before the patent is published, requiring further action by the examining division.