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The examiner should be guided at the re-examination stage by the over-riding principle that a final position (grant or refusal) should be reached in as few actions as possible, and he should control the procedure with this always in mind. The EPC provides that the process of communicating with the applicant described in VI, 2.3 is repeated "as often as necessary". Nevertheless, if despite the applicant's submissions, i.e. amendments or counter-arguments, objections persist, then even at the first re-examination stage the examiner should bring the application before the other members of the Examining Division, which may then decide to refuse the application. In any event, at some stage, the examiner will make a short written recommendation to the Division either that the application should be refused or that a patent should be granted. If the Division intends to refuse the application, a written reasoned decision is necessary and this will normally be prepared by the examiner entrusted with the examination of the application. In preparing the decision, the examiner must take care to abide by the general principles set out in Art. 113(1), i.e. the decision must be based on grounds or evidence on which the applicant has had the opportunity to comment. If the applicant appeals against the decision and the Examining Division considers, in the light of the applicant's statement, that the appeal is admissible and well-founded, it should rectify its decision accordingly within three months after receipt of the statement of grounds. Otherwise, the appeal will be considered by a Board of Appeal. If a decision to refuse a patent is reversed on appeal, the application may be referred back to the Examining Division for further examination. In such a case, the further examination will normally be entrusted to the examiner who performed the original examination. The Examining Division is bound by the ratio decidendi of the Board of Appeal, insofar as the facts are the same.
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Art. 96(2)
Art. 97
Rule 68(2)
Art. 113(1)
Art. 109
Art. 111(1)
Art. 111(2)
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