New R. 71 EPC reinstates the pre-2002 practice concerning changes to the text intended for grant suggested by the examining divisions. The new text of R. 71(3) EPC (R. 51(4) EPC 1973), which entered into force on 1 April 2012, reads as follows: "Before the examining division decides to grant the European patent, it shall inform the applicant of the text in which it intends to grant it and of the related bibliographic data. In this communication the examining division shall invite the applicant to pay the fee for grant and publishing and to file a translation of the claims in the two official languages of the European Patent Office other than the language of the proceedings within four months."
Thus once the examining division has decided that a patent can be granted it must inform the applicant of the text on the basis of which it intends to do so. Under the new regime, this text may include amendments and corrections made by the examining division on its own initiative which it can reasonably expect the applicant to accept. (Guidelines C‑V, 1.1 – November 2015 version, Text for approval).
In T 1849/12 the appellant asked for the withdrawal of the examining division's communication, and requested that the examining division be instructed to issue the communication under R. 71(3) EPC without delay - specifically before the expiry of 18 months from the priority date - and therefore to grant the European patent as quickly as possible. The board noted that Art. 93(2) EPC provided for the possibility of granting a patent before the expiry of the 18-month period. An earlier grant was thus not ruled out, provided the examining division had already concluded that the application met all the requirements of the EPC. As this was not yet so in the case at issue, the possibility provided for in Art. 93(2) EPC of granting a patent before the 18 months expired did not apply. The board did not see any conflict in this regard between the provisions of Art. 93(2) and 97(1) EPC. Under the Convention, the granting of a patent was conditional upon the mandatory examination of all EPC requirements. A patent could only be granted if the examining division considered all examination requirements met. Contrary to the appellant's claim, the examining board had no discretion in this regard. It had to be taken into account that the EPO was responsible for safeguarding the interests of the public, in addition to those of the appellant, and the public had to be able to rely on it doing so. Nor was the requirement of novelty over the prior art according to Art. 54(3) EPC a subordinate one, as the appellant appeared to claim. Rather, the lack of novelty over prior art according to Art. 54(3) EPC was a ground for both opposition under Art. 100(a) EPC and revocation under Art. 138(1)(a) EPC.