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 EPO examines whether the application and invention meet the requirements of the EPC and whether the invention is patentable in light of the search report issued in the search phase.
1 Setting up the examining division
Examiners work in three-member examining divisions. These consist of the previous search examiner (first member) and two examiners appointed by the director (second member and chairman).
2 Communicating with the applicant
The examining division either:
- issues the search opinion written during the search phase as a communication and sends it to the applicant requesting a reply within a certain time limit or issues a new communication; or
- grants the patent, following an approval by all members of the division. The text on which it is intended to grant a patent, including amendments made by the examiner, is communicated to the applicant. The procedure normally ends here.
If the applicant replies, the application is re-examined to check whether the objections raised have been overcome, either by amendments or by explanations of why the objections were not well-founded. There are three possible outcomes:
- If the objections are overcome, the grant of the patent is proposed.
- If the objections are not overcome, the patent is refused or a further communication is sent to the applicant or oral proceedings are scheduled.
- If the amendments are not permissible, a further communication may be sent or oral proceedings may be scheduled.
An internal discussion on the grant may take place within the examining division, either confirming the grant action or deciding to write a communication (e.g. in cases where the chairman disagrees on the inventiveness of the invention claimed).
Replies by applicants are normally made in writing, but a case may also be discussed during a personal interview between the applicant and the examining division.
Oral proceedings can be requested at any time and should result in either the grant of a patent or a refusal of the application.
3 Communicating the decision
If the examiner decides to grant a patent, he or she sends a written note on patentability to the other two members of examining division for approval. The text on which it is intended to grant a patent, including amendments made by the examiner, is communicated to the applicant. The procedure normally ends here.
If the application is abandoned, the examiner takes no action. If the application is refused, the examiner writes a reasoned decision, which is open to appeal.
4 End of Examination Procedure
After the text in which it is intended to grant a patent is communicated to the applicant, the applicant has to complete various formalities (paying fees, filing translations, etc.) and may still request small amendments before the granted patent is published, requiring further action by the examiner.