15.4a

Exceptions to the requirement of Rule 51(5)

(i)

if the communication under Rule 51(4) was based on a subsidiary request, and the applicant replies by maintaining one or more higher requests which do not meet the requirements of the EPC (see also Legal Advice 15/05 (rev. 02), OJ 6/2005, 357);

(ii)

if the communication under Rule 51(4) included amendments to the claims carried out by the examining division (see VI, 15.1, 1st paragraph), and the applicant responds by indicating that he does not approve of these amendments and maintains his request as on file when the communication under Rule 51(4) was issued; or

(iii)

if due to an error on the part of the EPO, the communication under Rule 51(4) was based on the wrong documents, and the applicant replies by pointing out or correcting that error.

If, as described in paragraph (i) above, the applicant maintains a higher ranking request which is not allowable, or if, as described in paragraph (ii) above, he does not agree to the amendments proposed by the examining division but instead maintains his request in an unallowable form, then a reasoned refusal under Article 97(1) would be issued, preceded where necessary by a communication setting out the reasons why the request is not allowable. If on the other hand, agreement is reached on an allowable text, where necessary following further communication from the examining division and response from the applicant, a second communication under Rule 51(4) will have to be issued in order to indicate the requirement for the translations and fees and to reset the related time limits. However, no further communication under Rule 51(4) would be required under the circumstances of paragraph (iii) above if the applicant replied to the original communication under Rule 51(4) by filing, of his own volition, the correct documents together with the translations and paid the fees, in which circumstances the application could proceed directly to grant.