4.9
Applicant disapproves of the text proposed for grant 

The applicant may reply to the communication under Rule 71(3) by simply disapproving of the text proposed therein and not paying any fees or filing the translations of the claims. In such cases, the application is not deemed to be withdrawn under Rule 71(7). Instead, if the following criteria are fulfilled, the application will be refused under Art. 97(2) for failure to comply with Art. 113(2), because there is no text agreed to by the applicant:

(i)
the examining division did not propose any amendments or corrections to the application in the communication under Rule 71(3),
(ii)
the applicant filed no amendments or corrections with his disapproval the Rule 71(3) communication was not based on an auxiliary request, and
(iii)
the Rule 71(3) communication was not based on an auxiliary request the applicant filed no amendments or corrections with his disapproval.

If the applicant has already been sent one communication in examination proceedings according to Art. 94(3), and Rule 71(1) and Rule 71(2) (see C‑III, 4 and E‑IX, 4.1), and his right to oral proceedings on request has been respected (Art. 116(1)), then the application can be refused directly without further communication with the applicant.

If any of these criteria are not met, either examination is re-opened as indicated in C‑V, 4.7 or, if the applicant's submissions result in an allowable text, a second Rule 71(3) communication is sent (see C‑V, 4.6).

If criterion (i) is not met, the applicant's disapproval is interpreted as a rejection of the amendments or corrections proposed by the examining division in the Rule 71(3) communication. If criterion (ii) is not met, the applicant's disapproval is interpreted as a request to base a grant on a higher request. If criterion (ii) (iii) is not met, the applicant's disapproval is interpreted as a desire to proceed with the application as amended or corrected by him in response to the Rule 71(3) communication. If any of these criteria are not met, either examination is re-opened as indicated in C‑V, 4.7 or, if the applicant's submissions result in an allowable text, a second Rule 71(3) communication is sent (see C‑V, 4.6).

If criterion (iii) is not met, in other words if the Rule 71(3) communication was based on an auxiliary request, the applicant's disapproval is interpreted as a request to base a grant on a higher request. Where criterion (ii) is not met and If it is not clear which higher request the applicant wishes to pursue, the examining division must request the applicant to clarify this in resumed examination proceedings.

However, where criterion (iii) is not met and

the short indication of the essential reasons given in the communication under Rule 71(3) for the non-allowability of the subject-matter of the higher-ranking requests or the non-admissibility of these requests (see C-V, 1.1 and C-V, 4.6.2) provides sufficient information about the objections raised by the examining division to enable the applicant to comment on them (such that the applicant is not taken by surprise, in particular where amendments or corrections have been filed together with the disapproval, see C-V, 4.7.1) and
the applicant's right to oral proceedings on request has been respected (Art. 116(1)),

a refusal of the application containing full reasoning (see C-V, 1.1 and C-V, 14, and E-X, 2.9) may be issued in reply to the disapproval of the text proposed in the communication under Rule 71(3).

While a general indication such as “Auxiliary request 3 is not clear because an essential feature is missing” would not be sufficient in this context, a more detailed statement such as “Auxiliary request 3 is not inventive in view of D1 (see col. 5, lines 25-46; fig. 4) because the skilled person, wishing to avoid friction between the cable and the carpet, would make the clip recess deeper than the cable diameter” would be sufficient to ensure that the applicant was not taken by surprise.

Where, within the Rule 71(3) period, the applicant first files only his disapproval of the text and then later (still within the Rule 71(3) period) files a request for correction/amendment, the procedure explained above does not apply. In such cases, the procedure for handling requests for amendment/correction filed in reply to the Rule 71(3) communication as defined in C‑V, 4.1 to 4.8, is to be applied.

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