EPO & R.161 Shenanigans

Those of you on EPO Communication Watch may have noted the insertion of a new paragraph in the R.161 “B” Communication.

It appears the EPO are getting annoyed by Applicants avoiding a compulsory reply to the new R.161 EPC Communication by filing any old amendments or comments at regional phase entry (see previous post). They have thus added the paragraph below in threatening bold type:

“Please note that, should you have already filed comments/amendments, which however do not address the deficiencies noted in the written opinion of the International Searching Authority or in the International Preliminary Examination Report or in the explanations pursuant to Rule 45bis.7(e) PCT to the Supplementary International Search Report, and should you choose not to react to the present communication, further amendments of the application documents can only be made with the consent of the Examining Division (R. 137(2) and (3) EPC).”

This paragraph simply reminds Applicants that this is the last point at which voluntary amendments may be filed; however, the sub-text appears to be: file a proper response or else. The problem is, legally, R.161 is a bit of a mess and there is no real “or else” sanction; Applicants can continue avoiding a compulsory reply in the usual manner.

It will be interesting to see whether the EPO begin to change practice to force earlier substantive amendment.

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