T 0676/14 - Requesting decision state of the file

Key points

• During examination, a decision according to the state of the file can be requested.
• In this case, the applicant had complained in appeal that the Examining Division had not dealt with some of its arguments in the Communication forming the basis for the refusal.
• "The Board further notes that the appellant could still have raised its concerns about the communication with the Examining Division when it withdrew its request for oral proceedings and requested a decision according to the state of the file, but did not do so."
• It is not so clear that a request for a decision according to the state of the file can be combined with arguments. See e.g. T 1768/11, [3.3]. 

5. The appellant's criticism of the appealed decision

5.1 In the statement of grounds of appeal, the appellant criticised - under the heading "Insufficient reasoning of the examining division" - the Examining Division's communication of 26 August 2013, to which the appealed decision refers for the reasons for the refusal. The appellant argued, in particular, that the communication had not dealt with some of its arguments put forward in its letter of 18 April 2013.

5.2 The appellant did not submit that the Examining Division had committed a substantial procedural violation, nor did it request reimbursement of the appeal fee. Nevertheless, under Rule 103(1)(a) EPC the Board is to consider ex officio whether reimbursement is equitable by reason of a substantial procedural violation (cf. decision J 3/14 of 8 September 2014, reasons 8).

5.3 The Board finds that the reasons given by the Examining Division in the communication of 26 August 2013 are understandable, even if flawed. The communication also does address, under point 7, several of the appellant's arguments from the letter of 18 April 2013, which shows that the appellant's submissions were not completely ignored.

The Board further notes that the appellant could still have raised its concerns about the communication with the Examining Division when it withdrew its request for oral proceedings and requested a decision according to the state of the file, but did not do so.

5.4 The Board therefore considers that the Examining Division did not commit a substantial procedural violation which could, under the circumstances, justify reimbursement of the appeal fee.