If there are no deficiencies of the type referred to in D‑IV, 1.4.1, but a notice of opposition which is deemed to have been filed reveals deficiencies under the terms of Rule 77(1) (see D‑IV, 126.96.36.199) which may no longer be remedied and which have not been communicated to the opponent in accordance with D‑IV, 1.3.2 (because the opposition period has already expired), the formalities officer must, by virtue of Art. 113(1), notify the opponent of these deficiencies, allowing him time in which to submit comments (normally two months), and point out to him that the notice of opposition is likely to be rejected as inadmissible.
If the opponent does not refute the opinion expressed by the formalities officer on the existence of deficiencies which may no longer be corrected or has failed to remedy in good time deficiencies which may be corrected (Rule 77(2)) and which were communicated to him pursuant to D‑IV, 1.3.2, the formalities officer will reject the notice of opposition as inadmissible, except in the case mentioned in D‑IV, 188.8.131.52(v) (for which the Opposition Division is competent to decide, see the Decision of the President of the EPO dated 12 December 2013 concerning the entrustment to non-examining staff of certain duties incumbent on the examining or opposition divisions, OJ EPO 2014, A6). As regards the form of the decision, see E‑IX, 4 and E-IX, 5.
In all other cases the formalities officer will submit the opposition documents to the directorate responsible for the European patent in suit (for designation of an Opposition Division, see D‑IV, 2).
The decision declaring the opposition inadmissible under Rule 77(1) or Rule 77(2) can be taken without the participation of the patent proprietor of the patent in accordance with Rule 77(3). However, for reasons of procedural economy, the substantive examination is in fact initiated if at least one further admissible opposition is pending. The patent proprietor of the patent may also comment on the admissibility of the former opposition in the course of that examination.
When the decision declaring the opposition inadmissible has become final the opponent concerned is no longer a party to the proceedings.