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Guidelines for Examination

 
 
1.2.1
Deficiencies which, if not remedied, lead to the opposition being deemed not to have been filed 

The following deficiencies fall into this category:

(i)
the opposition fee or a sufficient amount of the fee has not been paid in the course of the opposition period (Art. 99(1)). However, if the opposition fee, apart from a small amount (e.g. deducted as bank charges), has been paid within the opposition period, the formalities officer examines whether the amount lacking can be overlooked where this is justified. If the formalities officer concludes that the amount lacking can be overlooked, the opposition fee is deemed to have been paid and there is no deficiency in the present sense;
(ii)
the document giving notice of opposition is not signed and this is not rectified within the period set by the formalities officer, which is fixed at two months as a rule (see E-VII, 1.2) (Rule 50(3)).

It should be noted that for cases covered by Art. 133(2) (see also D-IV, 1.2.2.2(iv)) a professional representative first has to be appointed within the prescribed time limit. The above applies if the notice of opposition has not been signed by the representative and he has failed to remedy such deficiency either by signing it or by approving it in writing;

(iii)
where a notice of opposition is filed by fax and written confirmation reproducing the contents of the fax, if requested by Formalities, is not supplied in due time (Rule 2(1) and Decision of the President of the EPO, Special edition No. 3, OJ EPO 2007, A.3);
(iv)
where a notice of opposition is filed by the representative or employee of an opponent, and the authorisation, if any is required (see A-VIII, 1.5, and the Decision of the President of the EPO in Special edition No. 3, OJ EPO 2007, L.1), is not supplied in due time (Rule 152(1) to (3) and (6)); and
(v)
the Opposition is submitted within the opposition period but not in an official language of the EPO, as specified in Rule 3(1), or if Art. 14(4) applies to the opponent, the translation of the elements referred to in Rule 76(2)(c) is not submitted within the opposition period (see also A-VII, 2, G 6/91 and T 193/87). This period is extended where the one-month period as required under Rule 6(2) expires later. This deficiency is present if the opposition is not filed in English, French or German or if, for example, an opponent from Belgium files his opposition in time in Dutch but fails to file the translation of the essential elements into English, French or German within the above-mentioned time limits.

For oppositions which, upon submission, are deemed not to have been filed because of deficiencies as described above, see the further procedure as described in D-IV, 1.3.1, 1.3.3 and 1.4.1.