T 0234/86 (Therapy with interference currents) of 23.11.1987

I. The requirement of Rule 55(c) EPC regarding "an indication of ... the evidence" is fulfilled if the evidence concerned (in this case a citation) is clearly specified in the notice of opposition and if it is clearly stated which alleged facts it is intended to prove. Assessing the evidence (in this case determining whether the citation constitutes a prior publication) is part of the process of ascertaining whether the opposition is well founded in substance.

2. Without infringing Articles 102(3) or 113(2) or Rule 58 EPC the Opposition Division can - and in certain circumstances must - decide to maintain the patent on the basis of a subordinate auxiliary request by the patent proprietor if the latter pursues a main request plus non-allowable auxiliary requests which precede one which is allowable.

3. Where the EPC does not lay down unambiguously the procedure to be followed in a given situation (in this case when main and auxiliary requests have been submitted), use of an incorrect procedure does not, as long as no established case law exists on the matter, constitute a substantial procedural violation justifying reimbursement of the appeal fee.( cf. decision T 156/84, OJ EPO 1988, 372, point 3.13 of the Reasons).

IV. Rejection of a request (in this case auxiliary requests 2.3 and 2.5) without any reason being given in the decision itself or at least in a preceding communication referred to therein (Rule 68(2) EPC) constitutes a substantial procedural violation justifying a reimbursement of the appeal fee (Rule 67 EPC).