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Case Law of the Boards of Appeal

 
 
3. Obligation to give reasons for refusal of each request

If a decision relates to several requests, it must give reasons for the rejection of each one. It must be clear from the decision which considerations led the division to its conclusions (T 234/86 (inter partes), T 169/96 (ex parte); see also below point 5.).

According to T 961/00, it is a party's procedural right to file and maintain such requests as are regarded by the competent organ as unallowable or even inadmissible. If a party does so, then the competent organ has to give a decision on it, i.e. to refuse it if it is unallowable or inadmissible (see T 1105/96, OJ 1998, 249), but it cannot simply disregard it and deal with the case as if the request did not exist. On the contrary, this would constitute a substantial procedural violation.

In T 1157/01 the applicant had maintained all its requests (main and three auxiliary requests). When it declared its non-approval of the text proposed for grant based on the third auxiliary request, however, the appellant did not explicitly repeat that it maintained all its previous and higher ranking requests. However, according to the general principle "A jure nemo recedere praesumitur" mentioned in G 1/88 (OJ 1989, 189), in the absence of an explicit withdrawal, surrender of a right could not be simply presumed and silence could not be deemed to be equivalent to surrender in the logic of how the Convention operated. The decision under appeal had omitted to give reasons for the refusal of the higher ranking requests still pending before the examining division, which amounted to a substantial procedural violation.