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Guidelines for Examination

 
 

3. Further action upon examination of replies

The examiner should be guided at this stage by the over-riding principle that a final position (grant or refusal) should be reached in as few actions as possible, and he should control the procedure with this always in mind. The EPC provides that the process of communicating with the applicant described in C‑III, 4, is repeated "as often as necessary".

In most cases, the applicant will have tried to deal with all the examiner's objections (see B‑XI, 8).

If examination of the applicant’s reply shows that despite his submissions objections persist, and provided that at least one communication has been sent in examination proceedings (see C‑III, 4 and E‑VIII, 4.1) and the applicant has been given the right to be heard (Art. 113(1)), i.e. the decision is based solely on grounds on which he has had an opportunity to comment, the application is to be refused (see T 201/98).

If examination of the applicant’s reply shows that he has not dealt with all the main objections in his reply, it may be appropriate to draw the deficiencies to his attention, e.g. by telephone. But if no positive reaction is to be expected, the examiner should consider recommending to the other members of the Examining Division that the application be refused immediately (again provided that at least one communication has been sent in examination proceedings).

In most cases, however, examination of the applicant’s reply will show that there are good prospects of bringing the proceedings to a positive conclusion, i.e. in the form of a decision to grant. In such cases, if there are still objections to be met, the examiner must consider whether they can best be resolved by a further written communication, a telephone discussion or a personal interview. If substantial differences of opinion exist, the issues are generally best dealt with in writing. If, however, there seems to be confusion about points in dispute, e.g. the applicant seems to have misunderstood the examiner's arguments or the applicant's own arguments are unclear, then an interview may be useful. If, on the other hand, the matters to be resolved are minor, they can be settled more expeditiously over the telephone. Interviews or telephone discussions with the applicant or his representative are more fully considered in C‑VII, 2. Telephone discussions or interviews do not constitute oral proceedings (see E‑II).