T 0160/92 (Printing plate) vom 27.01.1994

1. The teaching of a prepublished abstract of a Japanese patent document, considered per se without its corresponding original document, forms prima facie part of the prior art and may be legitimately cited as such if nothing on file points to its invalidity. The party intending to contest the validity of said teaching on the basis of the original document teaching has the burden of proof (points 2.1 to 2.5 of the Reasons).

2. The answer to the controversial question whether the Applicant was misled about the possibility of imminent refusal of the application, must be sought by focusing on the procedurally relevant content of the file (points 3.2 to 3.4 of the Reasons).

3. A letter of reply to a communication of the Examining Division filed in due time by the Applicant and dealing with substantial points of this communication constitutes a reply in the sense of Article 96(3) EPC. Therefore, procedurally, it precludes deeming the application withdrawn; the further declaration: "This present letter is not to be treated as a formal response to that communication" is merely contradictory to the facts, the reality of which cannot be made null and void by such an expedient (point 3.5 of the Reasons).