The right to be heard and the obligation to state reasons

If, for the first time in the contested decision a document is cited which in view of the patent office anticipates the claimed subject without giving the applicant the opportunity to comment on it beforehand, the applicant's right to be heard is infringed. Rejection due to lack of novelty and inventive step requires verifiable justification. For this purpose, it is necessary to state in an individual comparison which (known) features anticipate the characteristics of the applicant's patent claims in an individual comparison which are detrimental to novelty; when examining inventive step it must be reasoned why the skilled person in view of the cited prior art documents would have come to the claimed subject matter without involving an inventive step. (OLG Vienna 20.11.2017,133R88/17i)