4.3.4 Documents comprising 'state of the file'

The "state of the file" is not restricted to those documents on file which were issued by the EPO, but also includes all those documents and arguments which were filed by the applicant prior to (or even simultaneously with) his request for a decision "on the status of the file" (T 265/03). It does not include the note of a telephone conversation (T 583/04). This was the summary record of a conversation not a communication pursuant to Art. 96(2) EPC 1973. Whereas the phone call note is a record of a dialogue, a communication constitutes a unilateral legal notice to a party. The two documents serve quite different purposes. This does not exclude the possibility of the statements made orally by phone being confirmed and adopted in a formal communication from the examining division inviting observations with a term set for reply. See also T 750/06.

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