Legal framework
Under Rule 71(3) EPC, before deciding to grant a European patent, the examining division informs the applicant of the text intended for grant and invites the applicant to pay the fee for grant and publishing and file translations of the claims within four months. If the text contains more than fifteen claims, claim fees are also invited under Rule 71(4) EPC. If the applicant pays the relevant fees and files the translations, the text is deemed approved under Rule 71(5) EPC.
However, Rule 71(6) EPC allows the applicant, within the Rule 71(3) period, to request reasoned amendments or corrections. If the examining division consents, it issues a new Rule 71(3) communication; otherwise, it resumes examination proceedings.
Even after approval of the text, Rule 71a(2) EPC provides that the examining division may resume examination proceedings at any time until the decision to grant. The Guidelines specify that this remains possible up to the moment when the decision to grant is handed over to the EPO’s internal postal service, in line with G 12/91.
Statement a)
Statement a) is false.
Filing the translations of the claims and paying the fee for grant and publication normally results in deemed approval of the text under Rule 71(5) EPC. However, that does not make resumption of examination impossible.
Under Rule 71a(2) EPC, the examining division may resume examination proceedings at any time until the decision to grant. According to the Guidelines, this power exists up to the moment when the decision to grant is handed over to the EPO’s internal postal service.
Therefore, resumption is still legally possible after payment and filing of translations, provided the grant decision has not yet reached that procedural point.
Statement b)
Statement b) is false.
Today is 15 September 2025, which is within the four-month period following a first Rule 71(3) EPC communication issued in June 2025. The applicant may therefore request a reasoned amendment to claim 15 under Rule 71(6) EPC.
In that situation, the applicant is not required to file translations of the amended claims or pay the fee for grant and publishing in reply to the first Rule 71(3) communication. The Guidelines state that, where the applicant requests amendments or corrections in response to the first Rule 71(3) communication, no fee for grant and publishing, no claims fees, and no translations of the claims are required at that stage.
If the examining division consents to the amendment, it will issue a new Rule 71(3) communication. If it does not consent, it will resume examination.
Statement c)
Statement c) is false.
If the applicant adds two dependent claims today, this is an amendment filed in response to the first Rule 71(3) communication. Even if the amendment increases the number of claims above fifteen, the added claims are not ignored merely because claims fees are not paid immediately.
The Guidelines provide that no claims fees are required in reply to the first Rule 71(3) communication when amendments or corrections are requested. If the examining division accepts the amendment and issues a second Rule 71(3) communication, any claims fees then due must be paid in response to that second communication.
Thus, the examining division may examine whether the amended claim set is admissible and allowable before any such claims fees become due.
Statement d)
Statement d) is false.
Third-party observations are not automatically disregarded merely because a Rule 71(3) communication has already been issued.
The Guidelines state that third-party observations received in examination after dispatch of a Rule 71(3) communication but before the decision to grant has been handed over to the EPO postal service will be considered by the examining division. If they are relevant, examination may be resumed; otherwise, brief substantive feedback is placed in the file.
Therefore, third-party observations filed today, before the decision to grant has been handed over to the EPO postal service, are not late in the sense suggested by the statement.
Exam tip
After a Rule 71(3) EPC communication, do not assume that examination is over. The decisive procedural cut-off is not payment of the grant fee, filing of translations, or deemed approval. The key point is when the decision to grant is handed over to the EPO postal service. Until then, the examining division may still resume examination, and third-party observations may still be considered.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.