I just answered question G3-10(d) [Basic Questions book] relating to failure to file a translation under R 40(3).
According to Visser, a missing translation under Art 90(3), R 57 (a), R 40(3) and failure to provide this within the two month time limit under R.58 will lead to the refusal of the application Art 90(5). He has also stated that the statement in A-III, 14 is probably incorrect.
In the DeltaPatents answer you refer to the translation under Art 14(2), R 6(1), which will lead to the application being deemed withdrawn.
Which is the correct answer?
Think about it, then click on Read more to see my answer
Unfortunately, the EPO has published some conflicting information on a couple of points in EPC2000. Derk Visser is basing his conclusion in his notes to R.40(3), on the documents used during the preparation of EPC2000, and the notes on R.57(a) published in the Special Edition (SE) No. 4 of OJEPO 2007.
Therefore, on the exam, the exam committee should accept both answers if you indicate the source (either guidelines for deemed withdrawn or SE 4 for refused). However, you should be aware that the exam committee often expects and prefers the guidelines answer over any other.
However, I would defend the deemed withdrawn conclusion of the Guidelines.
Legally, there is no difference between the application as filed when the pages of text are filed directly, or a reference is provided to a previously filed application consisting of those pages. The second way is simply a shorthand way of doing the same thing, although the text has to eventually be provided as a certified copy R.40(3).
Therefore, the law treats both kinds of applications the same. The language rules are applied the same – fee reduction R.6(3), authentic text Art.70(2), and filing a translation R.6(1)/ R.40(3).
I would then argue that R.6(1) and R.40(3) are parallel implementing regulations for Art.14(2), and the legal consequence is the same. This fits in with the use of the EPC to simply file a priority founding application – file some text, and get a filing date, and allow the application to become deemed withdrawn.
I hope this clears things up.