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Case Law of the Boards of Appeal

 
 
1.4.3 Immediate refusal after single communication

It is well-established in the jurisprudence of the boards of appeal that an examining division does not exceed its discretionary power by immediately refusing an application after only a single communication. However, the decision must comply with Art. 113(1) EPC, i.e. must be based on grounds on which the applicant has had an opportunity to present comments, see T 201/98 and T 1002/03; see also T 84/82 (OJ 1983, 451) and T 300/89 (OJ 1991, 480; see Chapter IV.B.2.4., Refusal after a single communication). If the factual basis is not sufficiently given in the single communication so that the appellant has to speculate about the examining division's assessment and thus is not put in the position to properly defend its rights, the requirements of Art. 113(1) EPC cannot be considered to be met; coming to a final decision after such a single deficient communication with the result that the application is refused results therefore in a substantial procedural violation (T 435/07).