2.4.8 Second communication under Rule 71(3) EPC: the consent of the examining division

If the examining division gives its consent under R. 137(3) EPC to these amendments and/or the correction and considers them allowable without issuing a further communication under Art. 94(3) EPC, it issues a second communication under R. 71(3) EPC based on the amended/corrected text, after which it then proceeds to the grant of the patent pursuant to Art. 97(1) EPC (see below in this chapter IV.B.3.1. "Informing applicant of the text intended for grant (Rule 71(3) EPC)").

In T 816/19 the board accepted that, in the light of Guidelines C‑V, 1.1 (November 2017 version), and the nature of the proposed amendments, it was debatable whether it was wise to propose these amendments in a communication under R. 71(3) EPC without first consulting the applicant. However, even if an amendment proposed in a communication under R. 71(3) EPC was inappropriate, no fundamental loss of rights was at stake since the applicant always retained the right to disapprove such an amendment (pursuant to Art. 113(2) EPC) thereby triggering either a new communication under R. 71(3) EPC or a resumption of examination proceedings, pursuant to R. 71(6) EPC.