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Guidelines for Examination

 
 

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 In such cases, the application is not deemed to be withdrawn under Rule 71(7).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 Rule 71(3) communication was not based on an auxiliary request, and
(iii)
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 (2) (see C‑III, 4 and E‑VIII, 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 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 (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). Where criterion (ii) is not met and 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.