In T 1216/02
the search division had sent a supplementary European search report to the applicant (appellant) with a wrong citation which was deceptively similar to the correct one. The examining division had refused the application because of the applicant's "incomprehensible" response to its second communication. The appellant had requested that the examination procedure be resumed to enable him to replace his response with a response based on the right document. The board held that, albeit for reasons outside the knowledge and control of the examining division, the refusal decision had been based on evidence on which the applicant had not had an opportunity - viewed objectively - to present his comments. This constituted an objective substantial procedural violation within the meaning of R. 67 EPC 1973
. However, the board did not deem reimbursement of the appeal fee equitable, because the appellant should have facilitated further substantive examination in the event of remittal or interlocutory revision by including in his statement of grounds of appeal a substantive response to the examining division's communication, based on the document which, at the time when the appeal was filed, he had known to be correct.