T 2411/13 - Last response not considered

T 2411/13
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Key points

• " It is clear that the statement of the Examining Division in the appealed decision that no comments had been filed by the appellant in reply to the last communication is not correct ..."

Summary of Facts and Submissions

I. The appellant (applicant) lodged an appeal against the decision of the Examining Division refusing the European patent application 02781000.1 which was dispatched on 7 June 2013. The Examining Division stated that the applicant had been informed in the communication dated 2 May 2012 that the application did not meet the requirements of the EPC. The Examining Division stated furthermore that no comments had been filed in reply to the communication of 2 May 2012.

V. The appellant argued essentially that:

[...]

ii) Right to be heard

The statement of the Examining Division according to which no comments had been filed was incorrect. The applicant had indeed filed comments in the letter dated 12 December 2012 and these were not referred to in the decision under appeal. The comments contained in this letter had therefore not been considered by the Examining Division in reaching its decision.

Reasons for the Decision
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2. Right to be heard

2.1 It is clear that the statement of the Examining Division in the appealed decision that no comments had been filed by the appellant in reply to the last communication is not correct and clearly indicates that the Examining Division did not consider the appellant's arguments filed with the last reply of 12 December 2012.

2.2 Consistent case law of the boards of appeal, see Case Law of the Boards of Appeal, 7th Edition, 2013, Chapter 1.1.1, 1st paragraph, shows that a failure to address in the contested decision the disputed points amounts to an infringement of the right to be heard (Article 113(1) EPC). The arguments contained in the letter of 12 December 2012 should have been taken into account and the failure to do so means that the decision is not sufficiently reasoned as required by Rule 111(2) EPC.

2.3 This constitutes a substantial procedural violation, furthermore as this procedural violation has led to the filing of the appeal then reimbursement of the appeal fee is equitable. The appeal is moreover allowable so that the requirements of Rule 103(1)(a) EPC are met.