I. The phrase "fails to reply in due time to any invitation
under ... paragraph 2" in Article 96(3) EPC has to be construed
in the light of the purpose of the invitation pursuant to
Article 96(2) EPC and Rule 51(2) EPC, which is to afford the
applicant an opportunity to exercise his right to present
comments in accordance with Article 113(1) EPC. Hence a letter
from the applicant which neither exercises nor waives that right
is not a reply for the purposes of Article 96(3) (reasons 3.2
and 3.3).
II. Where no reply other than such a letter has been received, a
purported refusal pursuant to Article 97(1) EPC is ultra vires -
and hence voidable ab initio - since Article 97(1) expressly
precludes refusal "where a different sanction is provided for by
this Convention", the sanction provided under Article 96(3) for
failure to reply being "the application shall be deemed to be
withdrawn" (reasons 5.1).
III. In particular, where an applicant's letter of reply to a
first Rule 51(2) communication contains only a procedural
request devoid of any substantive implications (here a request
for a replacement communication detailing the legal basis under
the EPC rather than the PCT of the objections raised in the
communication, and a request that a new time limit be set for
reply) the examining division has no power to refuse the
application under Article 97(1) EPC (reasons 4.3 and 4.5).
IV. In unclear cases there can be no presumption that an
applicant has waived his right to be heard under Article 113(1)
EPC. Hence a refusal decision pursuant to Article 97(1) EPC
(here purported refusal decision by reason of it being ultra
vires) based on such a presumption and taken before expiry of
the term originally set for reply to a communication contravenes
Article 113(1) and thus involves a substantial procedural
violation (reasons 3.3, 4.6, 4.8 and 5.3).
V. Where a fundamental procedural right has manifestly been
violated in a refusal pursuant to Article 97(1) EPC, or in the
foregoing examination procedure, a further substantial
procedural violation occurs if the examining division fails to
grant interlocutory revision on appeal (following T 647/93, OJ
EPO 1995, 132) since such a right must be safeguarded
irrespective of the substantive merits of the case (reasons
6.2).
