4. First communication 

If deficiencies persist in the application even after the applicant has filed their response to the search opinion, the examining division will issue a communication under Art. 94(3) and Rule 71(1), Rule 71(2) in subsequent examination proceedings and will consider the applicant's reply before issuing a negative decision or a summons to oral proceedings. For the exceptional case where a summons to oral proceedings is issued as the first action in examination proceedings, see C‑III, 5.

The following communications are not considered substantive actions in examination proceedings and thus are not regarded as the first communication from the examining division:

–the search opinion of an EESR or a supplementary search (ESOP)

–an opinion or report from the PCT procedure (WO‑ISA, SISR, IPRP or IPER)

–an invitation under Rule 62a or Rule 63

–a communication under Rule 137(4)

–a request under Rule 53(3)

–a request under Art. 124 and Rule 141

–an invitation under Rule 164(2)(a).

When drawing up such a communication (or exceptionally the summons to oral proceedings), the examining division will take into account the documents (if any) cited in the search report and any further documents found as a result of the search referred to in C‑IV, 7.1 as well as any amendments proposed or comments made by the applicant in reply to the search opinion (see B‑XI, 8) or the Rule 161(1) communication (see E‑IX, 3). The examiner should identify in this communication any EPC requirements that, in their opinion, the application does not satisfy. The communication will give reasons for any objections raised and invite the applicant within a specified period to file observations or submit amendments. The filed application documents are not sent back to the applicant although a copy of the description and claims may be sent in appropriate cases (see H‑III, 2). The examiner will re-examine the application once the applicant has replied.

If no search opinion has been issued (see C‑VI, 3, F‑V, 7.1(ii) and B‑XI, 1.1), the examiner's first communication under Art. 94(3) will, as a general rule (see B‑XI, 3) and by analogy with the search opinion, cover all objections to the application (see B‑XI, 3.4 for exceptional cases where not all objections are raised). A summons will not be issued as the first office action in examination proceedings in such a case.