T 0685/98 (Clock synchronisation) vom 21.09.1998

I. The phrase "fails to reply in due time to any invitation under ... paragraph 2" in Article 96(3) EPC has to be construed in the light of the purpose of the invitation pursuant to Article 96(2) EPC and Rule 51(2) EPC, which is to afford the applicant an opportunity to exercise his right to present comments in accordance with Article 113(1) EPC. Hence a letter from the applicant which neither exercises nor waives that right is not a reply for the purposes of Article 96(3) (reasons 3.2 and 3.3).

II. Where no reply other than such a letter has been received, a purported refusal pursuant to Article 97(1) EPC is ultra vires - and hence voidable ab initio - since Article 97(1) expressly precludes refusal "where a different sanction is provided for by this Convention", the sanction provided under Article 96(3) for failure to reply being "the application shall be deemed to be withdrawn" (reasons 5.1).

III. In particular, where an applicant's letter of reply to a first Rule 51(2) communication contains only a procedural request devoid of any substantive implications (here a request for a replacement communication detailing the legal basis under the EPC rather than the PCT of the objections raised in the communication, and a request that a new time limit be set for reply) the examining division has no power to refuse the application under Article 97(1) EPC (reasons 4.3 and 4.5).

IV. In unclear cases there can be no presumption that an applicant has waived his right to be heard under Article 113(1) EPC. Hence a refusal decision pursuant to Article 97(1) EPC (here purported refusal decision by reason of it being ultra vires) based on such a presumption and taken before expiry of the term originally set for reply to a communication contravenes Article 113(1) and thus involves a substantial procedural violation (reasons 3.3, 4.6, 4.8 and 5.3).

V. Where a fundamental procedural right has manifestly been violated in a refusal pursuant to Article 97(1) EPC, or in the foregoing examination procedure, a further substantial procedural violation occurs if the examining division fails to grant interlocutory revision on appeal (following T 647/93, OJ EPO 1995, 132) since such a right must be safeguarded irrespective of the substantive merits of the case (reasons 6.2).