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152
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You can file the request for examination up to the six months after the European Patent Bulletin mentions publication of the European search report. The request, which you must submit in writing, is one of the elements of the Request for Grant form (see Supplement, Section 5); but it is not deemed to be filed until you have paid the examination fee. Once filed, it cannot be withdrawn (see point 149).
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Art. 94(1), (2)
Guid. A-VI, 2.2;
Guid. C-VI, 1.1
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153
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If you do not perform the two acts of filing the written request for examination and paying the examination fee within the above period, you can still validly complete them within a grace period of one month after you have been notified of your failure to observe the time limit, provided you pay a surcharge within the grace period.
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R. 85b
Guid. A-VI, 2.2
Art. 2, item 7, RFees
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Note that re-establishment of rights is expressly excluded in respect of the time limit for filing the request for examination (see point 218).
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Art. 122(5)
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154
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You always have the option of paying the examination fee when you file the application. No disadvantages can accrue from this, as the examination fee is refunded in full if the application is withdrawn, refused or deemed to be withdrawn before the examining divisions have assumed responsibility, and at a rate of 75% after that date but before substantive examination has begun.
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Art. 10b RFees
Guid. A-VI, 2.2, 2.5
OJ 1988, 354
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155
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If you validly file the request for examination before receiving the European search report, pursuant to Article 96(1) the Receiving Section invites you to indicate, within six months of the date when the European Patent Bulletin mentions publication of the search report, whether you wish to proceed further with the application. If you do not reply to this invitation in due time, the application is deemed to be withdrawn. The examination fee shall be refunded in full.
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Art. 96(1), (3)
Guid. A-VI, 2.3; Guid. C-VI, 1.1.1
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In this case, however, you have recourse to the legal remedies provided for in both Article 121 (Further processing) and Article 122 (Restitutio in integrum) (see points 216 and see point 217).
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156
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To speed up proceedings, you can also simply waive your right to the invitation under Article 96(1). In that case, when you receive the search report you are deemed to have indicated that you wish to proceed further with the application, and the examining division then assumes responsibility for the procedure (see Annex II, point 5).
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Art. 96(1), 18(1)
Guid. C-VI, 1.1.2
OJ 2001, 459
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D. The European patent grant procedure
Stages of the procedure
