T 1567/17 – an unclear waiver is no waiver
In this case, the examining division issued a direct refusal after the appellant
had rejected the text intended for grant and requested that examination be
resumed based on reasoned amendments. The new main claim incorporated an amended
feature which, according to appellant’s own statement, “could be omitted if
regarded as violating Art. 123(2)”. The examining division indeed regarded the
amended feature as a violation, and interpreted the appellant’s statement as an
acknowledgement that the amendment could not be unambiguously derived from the
description as filed. The appellant was given no opportunity to respond to the
division’s opinion on this issue.
The
Board held that the
direct refusal of the application was in violation of Art. 113(1) EPC, since
the appellant’s statement could not be construed as waiving
the right to be heard, but merely intimated that a new R. 71(3) communication
would have been accepted on the basis of amended claims without the feature in
question.
Only an unambiguous statement
as to waiving a party's right to be heard is to be interpreted as a waiver of this right.
Catchwords: |
The applicant's remark in a response under Rule 71(6) EPC that an amended feature "can also be omitted if regarded as violating Article 123(2) EPC" cannot be construed as waiving its right to be heard and its right to a reasoned decision in case the application were to be refused. Rather, this remark merely intimates that the applicant would accept the issue of a new communication under Rule 71(3) EPC on the basis of the amended set of claims without said feature.
|
---|