4.7.1 Communications/oral proceedings/refusal after resumption

If the examining division finds the amendments submitted by the applicant in reply to the Rule 71(3) communication either inadmissible or not allowable, it will resume the examination proceedings.

The next action may be a communication under Art. 94(3) or a consultation with the applicant (see C‑VII, 2). The examining division may also issue a summons to oral proceedings or, if the necessary requirements are met, refuse the application directly.

Where the grounds or evidence behind the finding of non-allowability or inadmissibility of the amendments have not yet been dealt with in examination proceedings, before issuing a summons to oral proceedings or a decision to refuse (see C‑V, 4.7.3) the examining division will send a communication according to Art. 94(3) and Rule 71(1) and (2) explaining this finding.

The application may be refused directly if the following criteria are satisfied:

(a)the grounds leading to the finding that the requests filed in response to the Rule 71(3) communication are inadmissible or not allowable have already been formally dealt with in examination proceedings (Art. 113(1)), for example in a communication under Art. 94(3) and Rule 71(1) and Rule 71(2) (see C‑III, 4, E‑X, 1.1); and

(b)the applicant's right to oral proceedings on request has been respected (Art. 116(1)).

If one of the following situations applies, the examining division will have to arrange for the holding of oral proceedings before issuing a decision to refuse (see C‑V, 4.7.3):

(i)oral proceedings have been requested but have not yet been held 

(ii)oral proceedings have been held, but: 

– the subject of the proceedings has changed such that a right to subsequent oral proceedings arises under Art. 116(1) (e.g. as a result of the amendments filed in response to the Rule 71(3) communication) and

– the applicant has requested subsequent oral proceedings. 

If the grounds and evidence behind for the finding amendments non-allowableof non-allowability or inadmissibleinadmissibility of the amendments have already been dealt with in examination proceedings, but not yet in oral proceedings, a summons to oral proceedings can be issued directly, provided at least one communication under Art. 94(3) and Rule 71(1) and (2) has been issued.

Requests for oral proceedings must be allowed as long as proceedings before the EPO are still pending, i.e. until the decision to grant has been handed over to the internal post (see G 12/91 and T 556/95, especially reasons for the decision 4.4).

If the following criteria are satisfied, the application may be refused directly:

(a)the grounds and evidence behind the non-allowabilityallowance or non-admittanceinadmissibility of the request filed in response to the Rule 71(3) communication have already been dealt with in examination proceedings (Art. 113(1));

(b)the applicant has received at least one communication according tounder Art. 94(3) and Rule 71(1) and (2) (see C‑III, 4); and

(c)the applicant's right to oral proceedings on request has been respected (Art. 116(1)).