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In T 643/96 an examining division relied in its decision on a document for which it gave only incomplete bibliographic data. The board held that the examining division's failure to provide the applicant with a copy of the said document did not amount to a substantial procedural violation, having regard to the right to be heard, because the document added nothing to the case, since it listed something already listed in another document and thus contained only information already known to the appellant/applicant.
In T 405/94 the board held that a party which, although made aware by at least one letter from another party that an objection had been raised about the availability to the public of the content of a thesis, did not react before the oral proceedings at which a decision could be taken, or which provided for the first time at the oral proceedings information which was found to need confirmation, had had sufficient opportunity to comment on the objection and did not need to be given a further opportunity.
In T 296/96 the applicant did not submit convincing arguments in his reply to the first communication. The examining division refused the application on the basis of the objections mentioned in the only communication, instead of repeating the objections in a second one. Since, however, the main arguments for refusing the application were a mere repetition of those mentioned in the only communication, the contested decision was based on grounds on which the applicant had had an opportunity to present his comments and, consequently, Art. 113(1) EPC 1973 was not contravened. In T 821/96, the board added that, according to the established case law, it was left to the examining division's discretion to decide whether to issue a further invitation to present comments under Art. 96(2) EPC 1973. A further invitation would only be appropriate if it would appear likely that, in the light of the applicant's reply, the examination proceedings would terminate in the granting of a patent (see also T 201/98).
In T 1237/07, the board stated that Art. 96 EPC 1973 and R. 51 EPC 1973 left the examining division discretion to assess whether a communication was necessary or it was more appropriate to put an end to the written phase and hold oral proceedings. The right to present comments enshrined in Art. 113(1) EPC did not need to be exercised in writing but might be satisfied by way of oral proceedings.
In T 166/04 the examining division had refused the patent application at the end of oral proceedings which the applicant had not attended. In the appellant's opinion, a gross procedural violation had occurred in that the examining division had used a short-term invitation to oral proceedings to introduce five additional prior art documents (D4...D8) in a complex technical field. Instead, the examining division should have issued another communication pursuant to Art. 96(2) and R. 51(3) EPC 1973 to safeguard the applicant's right to be heard according to Art. 113(1) EPC 1973. The board noted that the decision under appeal mentioned the prior art documents D4 to D8 only obiter. Those documents, while cited in the summons, had not therefore played a decisive role. However, even if they had formed part of a critical argumentation, the board would not necessarily consider their late introduction through summons as improper. Apart from the non-extendable time limit, the appellant had had an opportunity to respond to the summons in writing as if he had responded to a communication under Art. 96(2) EPC 1973. He had actually done so by submitting amendments and arguments with his letter dated 27 March 2003, which dealt with all the prior art documents D1 to D8. In addition, the board pointed out that the applicant had decided not to participate in the first-instance oral proceedings in the course of which he could have made further submissions.
As to the issue of a second communication prior to the refusal of the application, the board in T 1557/07 stated, giving detailed reasons, that the circumstances of the case before it were not comparable to those underlying T 734/91. Concerning a further issue, i.e. the allegation that the examining division had not fully and accurately dealt with all the relevant arguments submitted by the applicants, the examining division was under no obligation to address each and every argument presented by the party concerned. In the case in point, the examining division had commented on the crucial points of dispute, thus giving the applicants a fair idea of why their submissions were not considered convincing. This allegation was therefore also not conclusive. In conclusion, the examining division had not committed a substantial procedural violation.