3. Further action upon examination of replies
Examiners should be guided at this stage by the overriding principle that a final position (grant or refusal) should be reached in as few actions as possible, and they should control the procedure with this always in mind. The EPC provides that the process of communicating with the applicant described in C‑III, 4 is repeated "as often as necessary".
In most cases, the applicant will have tried to deal with all the examiner's objections. A letter of reply from the applicant does not have to be substantively complete or cogent in order to qualify as a reply within the meaning of Art. 94(4). For the application not to be deemed withdrawn, it is enough for the applicant to comment on, even incompletely, or to file amendments in reply to at least one of the objections raised in the communication under Art. 94(3). In contrast, purely formal requests, such as the extension of the time limit under Art. 94(3) or the request for a consultation, do not qualify as replies under Art. 94(4) (see also B‑XI, 8 and E‑VIII, 2). A request for a decision according to the state of the file (see C‑V, 15), however, qualifies as a reply within the meaning of Art. 94(4).
If the only outstanding objection is the need to amend the description, see C‑VI, 1.1.
If examination of the applicants' reply shows that despite their submissions objections persist, and provided that at least one communication has been sent in examination proceedings (see C‑III, 4 and E‑IX, 4.1) and the applicants have been given the right to be heard (Art. 113(1)), i.e. the decision is based solely on grounds on which they have had an opportunity to comment, the examiner will consider recommending to the other members of the examining division that the application be refused (see T 201/98). However, where there is a reasonable prospect that an additional invitation to overcome the objection(s) could lead to a grant, the examiner will send a further written communication or contact the applicants by telephone. The examiner may also make suggestions on how to overcome the raised objections (see B‑XI, 3.8 and C‑III, 4.1.2).
If examination of the applicants' reply shows that they have not dealt with all the main objections in their reply, it may be appropriate to draw the deficiencies to their attention, e.g. by telephone. But if no positive reaction is to be expected, the examiner should consider recommending to the other members of the examining division that the application be refused immediately (again provided that at least one communication has been sent in examination proceedings).
If substantial differences of opinion exist, the issues are generally best dealt with in writing. If, however, there seems to be confusion about points in dispute, e.g. the applicant seems to have misunderstood the examiner's arguments or the applicant's own arguments are unclear, then a consultation may be useful. A consultation may also expedite the procedure, if the matters to be resolved are minor. Consultations do not constitute oral proceedings (see E‑III). They are more fully considered in C‑VII, 2.