3.5.3 No waiver of right to a reasoned decision

A request for a decision on the state of the file thus cannot be construed as a waiver of the right to a fully reasoned first instance decision (T 265/03, T 583/04, T 1182/05, T 1356/05, T 1360/05, T 1309/05 and T 750/06). T 1356/05 goes further and states that even if an applicant were to waive his right to a reasoned first instance decision expressis verbis, it hardly authorises the examining division to dispense with it.

In T 952/07 the board made it clear that the duty to provide reasons in administrative decisions was a fundamental principle in all contracting states, R. 68(2) EPC 1973 simply being an expression of this principle. The losing party must be in a position to understand the reasons for the negative decision taken against it so that it can consider the option of filing an appeal.

In T 2187/17 the impugned decision did not contain any reasons as to why the arguments presented by the appellant were not relevant and it was left to the appellant and to the board to speculate on the reasons for the refusal. It should be noted that a request for a decision based on the current state of the file is not to be understood as a waiver by the party of its right to a fully reasoned decision. The departments of the European Patent Office cannot omit to give reasons for their decisions when the EPC requires them to do so.