Due to the revisions in the Guidelines in 2018, the Examining Division of the EPO is now able to issue a summons for oral proceedings as a first office action (hereinafter also called as "OA") if:
– in its opinion, there is no prospect of a grant, even taking into account the applicant's reply to the search opinion;(GL C-III, 5)
– the content of the claims on file is not different in substance from that of the claims which served as a basis for the search, and
– one or more of the objections raised in the search opinion which are crucial to the outcome of the examination procedure still apply.
It is however questionable, how often the Examining Division makes use of the summons as a first action in practice.
I have never experienced a case where summons have been issued as a first OA, nor have I heard of anyone else encountering such a case.
So I looked for cases where summons have been issued as a first OA by using so called EP Bulletin Search (https://data.epo.org/expert-services/index.html), a search tool provided by the EPO. After spending some time with the EP Bulletin Search, I could finally find one case where summons have been issued as a first OA, i.e., European patent application EP3452931.
In view of the facts that we have rarely heard of a case in which summons have been issued as a first OA, and that I could find only one case after spending a certain amount of time with searching, it can be concluded that the Examining Division issues summons for the oral proceedings as a first OA extremely exceptionally.
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