3.2.1 Clear and unambiguous approval of the text
In T 2864/18 the appellant, in its reply to the first communication under R. 71(3) EPC, had requested certain corrections in the translations of the claims and then proceeded to state "All the other pages of the text enclosed to the Communication under R. 71(3) EPC do not require amendments or corrections and are hereby approved by the Applicant". From these statements the board inferred that the appellant was fully aware of the complete set of documents proposed as forming the basis for the intended grant. It found that the approval of the text was unequivocal and was repeated, albeit not explicitly in writing, but by reacting to the second communication under R. 71(3) EPC (payment of fees).
In T 646/20 the board found no support for any obligation of the examining division to defer a decision of grant until the expiry of the four months period in a case where the applicant had at any given time within this period of time given approval to grant and thereby allowed the examining division to issue a corresponding decision. It found it would be rather strange if the examining division had to defer a decision for the eventuality that the applicant had second thoughts. In the case in hand, following the R. 71(3) EPC notification, the applicant gave its explicit approval to issue the decision to grant, however following the decision to grant, the appellant then voiced its disapproval. The board distinguished the case in hand from T 1/92 (OJ 1993, 685; see above in this chapter). It was also not convinced by the appellant's argument that an approval sent in response to a R. 71(3) EPC communication could not be interpreted as a waiver of further options or remedies. Every approval of the text of a patent implied a waiver of the remaining infinity of texts in which a patent could be granted.