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Case Law of the Boards of Appeal

 
 
3.3.2 Insufficient substantiation of the grounds for opposition

In T 182/89 (OJ 1991, 391) the board held that in order to establish insufficiency, a mere statement by an opponent that one example in a patent had been repeated once "exactly as described" without obtaining exactly the described results as set out and claimed in the patent was clearly inadequate. Indeed, if a notice of opposition alleging insufficiency under Art. 100(b) EPC 1973 as the sole ground of opposition, contained such a statement as the only indication of "facts, evidence and arguments" in support of this ground, then the notice of opposition should be regarded as inadmissible even if the alleged facts were subsequently proved.

In T 550/88 (OJ 1992, 117) the board of appeal considered whether national prior rights could as a matter of law constitute "facts or evidence" relevant to the ground of lack of novelty under Art. 54(1) and (3) EPC. If not, such facts and evidence did not support the ground for opposition which had been alleged and therefore did not satisfy the requirement of R. 76(2)(c) EPC (former R. 55(c) EPC 1973). In the board's judgment, on the proper interpretation of Art. 54(3) EPC, national prior rights were not comprised in the state of the art, and only prior European patent applications filed under the Convention could be considered as such under Art. 54(3) EPC. The board of appeal decided in this case that the opposition was inadmissible because the only facts and evidence indicated in the notice of opposition were references to national prior rights.