5. Summons to oral proceedings as the first action in examination 

In exceptional cases, the examining division may issue a summons to oral proceedings as the first action in examination. The division may decide to do so only if

– in its opinion, there is no prospect of a grant, even taking into account the applicant's reply to the search opinion; 

– the content of the claims on file is not different in substance from that of the claims which served as a basis for the search, and 

– one or more of the objections raised in the search opinion which are crucial to the outcome of the examination procedure still apply. 

In addition, in examination of a divisional application, the examining division may exceptionally issue a summons to oral proceedings as the first action if:

–the parent application was refused or withdrawn and there is no prospect of a grant for the divisional application, even taking into account the applicant's reply to the search opinion;

–the content of the claims on file is substantially the same as or broader than the subject-matter of claims which were examined for the refused or withdrawn parent application, or which served as a basis for the search of the divisional application, and

–one or more of the objections which are crucial to the outcome of the examination procedure and which were raised in the search opinion established for the divisional application, in the refusal of the parent or in a communication issued for the withdrawn parent still apply.

The annex to the summons issued as the first action in examination must deal with the applicant's requests in their entirety and be as detailed as a communication under Art. 94(3) EPC (see, in particular, C‑III, 4.1). It must not include any new objections or cite new documents that were neither included in the search opinion nor, in the case of a divisional application, in the refusal of the parent application or in a communication issued for the withdrawn parent application. All objections to the application must be covered and substantiated by giving the essential legal and factual reasons. In addition, it must include the reasons why the division decided to directly summon to oral proceedings as the first action in examination. The division may inform the applicant in a telephone call if it is considering issuing a summons to oral proceedings as the first action in examination (C‑VII, 2.5).

In order to allow the applicant sufficient time to prepare any submissions ahead of the oral proceedings, the summons should be issued with at least six months' notice.

In accordance with the principles applicable to the summons to oral proceedings, applicants may avail themselves of the possibility to submit any arguments and amendments by expiry of the deadline set under Rule 116(1) EPC. Requests filed after the date set under Rule 116(1) are not to be treated as late-filed (H‑II, 2.7) in the case of a summons to oral proceedings issued as first action in examination.

Should the applicant's submissions contain a genuine effort to overcome the examining division's objections, oral proceedings may be cancelled or postponed. Otherwise, a decision on the substance of the application will in principle be taken during the oral proceedings, even if the applicant does not attend them (see E‑III, 6 and E‑III, 8.3.3.3).