1.3.16 The examining division's reliance on the IPER

In T 1065/99 the board stated that when an International Preliminary Examination Report (IPER) drawn up by the EPO under the PCT was relied on by the examining division, such reliance should not be presented to applicants in such a manner as to suggest that the examining division had not given objective consideration to the patentability requirements of the Convention. In this case, the IPER had been adopted by the examining division as the only basis for its opinion that the application did not meet the requirements of the Convention. The board came to the conclusion that there were three objections ­ concerning irrelevance, clarity and sufficiency ­ which were only obliquely touched upon in the IPER, and thus in the communication under R. 51(2) EPC 1973. Therefore, the party had had no opportunity to contest those objections. The board ordered the reimbursement of the appeal fee for the violations of Art. 113(1) EPC 1973.

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