At the beginning of substantive examination, if the Examining Division is of the opinion that the application cannot be granted directly, at least one substantive communication within the meaning of Art. 94(3) must be sent before the Division can consider issuing a summons to oral proceedings (see C‑III, 4).
In particular it should be noted that neither the search opinion of an EESR or a supplementary search (ESOP) nor an opinion or report from the PCT procedure (WO-ISA, SISR, IPRP or IPER) is a communication under Art. 94(3), so that even if the applicant has replied thereto, it is not possible to send a summons as a first communication in European substantive examination.
Nor are the following communications/requests considered as substantive communications from the Examining Division for this purpose: invitation under Rule 62a or Rule 63, communication under Rule 137(4), request under Rule 53(3), request under Art. 124 and Rule 141, invitation under Rule 164(2)(a).
In examination proceedings, where the applicant has been invited to provide a translation of the priority according to Rule 53(3) (see A‑III, 6.8.2, and F‑VI, 3.4), no summons to oral proceedings will be issued until either the translation is provided or the period for further processing in respect of the time limit according to Rule 53(3) has expired.
Date retrieved: 02 November 2015
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EPC Implementing Rules
EPO Guidelines - A Formalities Examination
EPO Guidelines - C Procedureal Aspects of Substantive Examination
XGL C IV 3.1 Further action where a request for a translation of the priority application was sent earlier in examination proceedings