In examination proceedings, the formal requirements of Rules 46 and 49(2)-(9) and (12) prescribed by the President under Rule 49(2) apply equally to application documents submitted during oral proceedings by email or by hand (OJ EPO 2020, A71).
Documents containing handwritten amendments will normally be accepted by the division as a basis for discussion during oral proceedings until agreement is reached on the final text of the patent. However, a final decision granting a patent may be taken only on the basis of documents which are formally compliant.
If the applicant is unable to provide formally correct amended application documents during oral proceedings, the following applies:
(a)If a decision to refuse a patent application is imminent and formally non-compliant documents making up the application are on file, to avoid prolonging the proceedings the examining division will go ahead and issue the decision, based on substantive arguments. It may however mention this formal deficiency in the decision.
(b)If there is agreed patentable subject-matter, the examining division announces the following:
– the amended application fulfils the requirements of the EPC except for certain formal requirements, e.g. the ones under Rule 49(8) regarding handwritten amendments; and
– the procedure will be continued in writing.
After the closure of the oral proceedings, the formalities officer on behalf of the examining division (see A‑III, 3.2) will invite the applicant to file formally correct documents within two months. Where the amendments submitted in reply to this invitation differ from the patentable subject-matter established at the oral proceedings, the procedure described in C‑V, 4.7 is to be applied.