2.8.4 Essential reasoning based on an International Preliminary Examination Report (IPER)

In T 275/99 the board held that the requirements of Art. 113(1) EPC 1973 were met if the appealed decision was entirely based on the grounds, facts and evidence which were already known to the appellant from the extensive IPER which had been drawn up for the description and the claims of the international application corresponding exactly to the European application refused and which had been incorporated by way of reference in an official communication of the examining division.

In T 587/02 the board held that if the only communication preceding the decision to refuse an application merely draws attention to an IPER, the requirements of Art. 113(1) EPC are met provided the IPER constitutes a reasoned statement as required by R. 51(3) EPC 1973, using language corresponding to that of the EPC.

In T 1870/07 the single communication from the examining division pursuant to Art. 96(2) EPC 1973 merely signalled agreement with the IPER. The board did not see any objection to citing an IPER from an International Preliminary Examining Authority other than the EPO, provided that it constituted a reasoned statement (see, for example, T 951/92). However, in its view, the IPER failed to meet the requirements of a reasoned statement. In the communication of the examining division, there was no logical chain of reasoning which would have permitted the appellant to understand and deal with the novelty objection, either by amendment or counterargument. Art. 113(1) EPC 1973 was, therefore, not satisfied.

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