1.3.1 Submissions made after communication

In T 1709/06 it was held that, in accordance with established case law, not only must an opportunity to present comments be given, but these comments must actually be taken into account. As the decision "on the state of the file" expressly stated that the applicant had filed no submissions after the final communication, which was factually incorrect, the board concluded that, because the examining division had ignored potentially significant arguments presented in a reply following a communication containing a new objection, the applicant had been denied its right to comment on all the grounds for refusing the application. The applicant's right to be heard enshrined in Art. 113(1) EPC had therefore been infringed.

The board in T 1997/08 held that for an examining division not to violate an applicant's right to be heard, its decision had to actually address the arguments put forward by the applicant in its reply to the communication. It may be assumed that the right to be heard has been contravened if the reasons given for the examining division's decision merely repeat the reasons given for the communication issued before the said reply. The reasons given for the contested decision had basically been "copied and pasted" from the grounds set out in the examining division's sole communication.

In T 296/96 the applicant had not submitted 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.

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