5.
Summons to oral proceedings as the first action in examination
In exceptional situations where despite the applicant's reply to the search opinion no possibility of a grant can be envisaged, the examining division may issue a summons to oral proceedings as the first action in examination. In particular, the division may decide to do so only if
the content of the claims on file is not substantially different to that of the claims which served as a basis for the search, and
one or more of the objections raised in the search opinion which are crucial to the outcome of the examination procedure still apply.

The annex to the summons issued as the first action in examination must deal with the applicant's requests in their entirety and be as detailed as a communication under Art. 94(3) EPC (see, in particular, C-III, 4.1). It must not include any new objections or cite new documents. In addition, it must include the reasons why the division decided to directly summon to oral proceedings as the first action in examination.

In order to allow the applicant sufficient time to prepare any submissions ahead of the oral proceedings, the summons should be issued with at least six months' notice.

In accordance with the principles applicable to the summons to oral proceedings, the applicant may avail himself of the possibility to submit any arguments and amendments by expiry of the deadline set under Rule 116(1) EPC.

Should the applicant's submissions contain a genuine effort to overcome the examining division's objections, oral proceedings may be cancelled or postponed. Otherwise, a decision on the substance of the application will in principle be taken during the oral proceedings, even if the applicant does not attend them (see E-III, 6 and E-III, 8.3.3.3).

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