2.6.3 Immediate refusal after communication

An examining division does not exceed its discretionary power by immediately refusing an application after only a single communication. However, the decision must comply with Art. 113(1) EPC, i.e. must be based on grounds on which the applicant has had an opportunity to present comments (see T 201/98 and T 1002/03; see also T 84/82, OJ 1983, 451 and T 300/89, OJ 1991, 480; see chapter IV.B.2.3. "Refusal after a single communication"). If the factual basis is not sufficiently given in the single communication so that the applicant has to speculate about the examining division's assessment and thus is not put in the position to properly defend its rights, the requirements of Art. 113(1) EPC are not met; coming to a final decision after such a single deficient communication results therefore in a substantial procedural violation (T 435/07).

In T 305/14 the board stated that only if a preceding communication pursuant to Art. 94(3) EPC sets out the essential legal and factual reasoning to support a finding that a requirement of the EPC has not been met, can a decision based on such a finding be issued without contravening Art. 113(1) EPC. In the case at hand, the board held that the decisive statement had been put forward in the communication in an abstract way only, without the necessary logical chain between the given statement and the particular technical facts of the case. Because the appellant learnt about the essential reasoning for the first time in the impugned decision, it did not have an opportunity to present its comments with respect to that reasoning.

In T 17/22 the examining division had issued two communications before refusing the patent application. The first was a communication under R. 161(1) and 162 EPC. The second, with a period for reply of one month, was headed "Invitation pursuant to R. 137(4) EPC and Art. 94(3) EPC". The board considered neither of them a substantive communication under Art. 94(3) EPC. The board reasoned, among others, that the short period of one month specified in R. 137(4) EPC was inappropriate for a reply to substantive issues and that the mere reference to Art. 94(3) EPC in the heading of the communication did not affect the conclusion that the communication under R. 137(4) EPC was not a substantive communication under Art. 94(3) EPC. The board held that the omission of a communication under Art. 94(3) EPC, with an appropriate time limit to respond, was a substantial procedural violation as it had deprived the applicant of the opportunity to react to such communication.