Rule 62a EPC: Applications containing a plurality of independent claims

Text of Rule 62a EPC

In plain English

Rule 62a is how Rule 43(2) is enforced at the search stage. If the search division thinks the claims contain more than one independent claim in the same category without an exception applying, it may invite you to say, within two months, which claims it should search.

The search division is not obliged to send the invitation. It can instead search everything and raise Rule 43(2) only in the search opinion (Guidelines B-VIII, 4.1).

Your reply cannot amend the claims, because Rule 137(1) bars amendments before you receive the search report. It is only an indication of what to search. You can also argue that the objection is unjustified, for instance because the claims fall under one of the Rule 43(2) exceptions.

If you do not reply, the search covers the first claim in each category. Later, in examination, you must restrict the claims to the searched subject matter unless the examining division agrees the objection was wrong (Rule 62a(2)), and you cannot switch to unsearched claims (Rule 137(5)). The description must be adapted to remove the unsearched subject matter or mark it (Guidelines H-II, 5).

The two-month period cannot be extended or rescued by further processing (Rule 135(2)).

Deadlines and fees

Common objections

Unsearched independent claims kept in examination

If not deleted or made dependent on a searched claim (where Article 123(2) and Article 84 allow), the application can be refused under Article 97(2), after any requested oral proceedings.

Drafting and prosecution tips

• Reply even if you disagree: name the claims you want searched and give reasons why the invitation is unjustified, so the search covers what matters most.
• Choose the broadest commercially relevant claim in each category, not simply claim 1.
• Pursue any unsearched independent claims in a divisional application.