Tuesday, July 11, 2017 T 2092/13 - Misleading communication

In the statement of grounds of appeal against a decision from the Examining Division, the appellant also alleged a series of procedural violations in the first-instance proceedings and requested the reimbursement of the appeal fee. In particular, the appellant submitted that no intention to refuse the application was announced in the official communication preceding the refusal of the application. This argument was further developed by the appellant during the oral proceedings held before the board. The Board agreed with the applicant: "It is a general principle governing relations between the EPO and applicants that communications addressed to applicants must be clear and unambiguous so as to rule out misunderstandings on the part of a reasonable addressee, and that an applicant must not suffer a disadvantage as a result of having relied on a misleading communication. Therefore the board considered that, in the specific circumstances of the case, the examining division's communication created a realistic and reasonable expectation that any subsequent negative finding of the examination division on the issue of novelty and/or inventive step would then be communicated to the appellant before any adverse decision on any of these issues would be taken by the examining division. The appellant could therefore not expect that by closely following the examining division's suggestion [in the preceding communication] in respect of the original claims 1 and 2 a decision refusing the application on the grounds of lack of inventive step of these claims could then be immediately issued."