3.3. Amendments or corrections filed in response to the communication under Rule 71(3) EPC

In T 1567/17 the board held that the applicant's remark in a response under R. 71(6) EPC that an amended feature "can also be omitted if regarded as violating Art. 123(2) EPC" could not be construed as waiving its right to be heard and its right to a reasoned decision in case the application were to be refused. Rather, this remark merely intimated that the applicant would accept the issue of a new communication under R. 71(3) EPC on the basis of the amended set of claims without said feature. The appellant had been given no opportunity to respond to the division's opinion on this issue and the board held that the direct refusal of the application by the examining division was in violation of Art. 113(1) EPC. Surrender of a right cannot be simply presumed (referring to G 1/88, OJ EPO 1989, 189; T 685/98, OJ EPO 1999, 346).