T 0182/89 (Extent of opposition) of 14.12.1989

1. In order to establish insufficiency, the burden of proof is upon an opponent to establish on the balance of probabilities that a skilled reader of the patent using his common general knowledge would be unable to carry out the invention. A mere statement that one of several examples in a patent has been repeated once "exactly as described" without obtaining exactly the results claimed in the patent is in principle inadequate to discharge that burden (Decisins T 292/85, OJ EPO 1989,275 and T 281/86 OJ EPO 1989,202 followed).

2. The purpose underlying the relevant provisions of the EPC requires that an Opposition Division should normally decide at the same time all grounds of opposition which have been both alleged and supported (as required by Rule 55(c) EPC) in the notice of opposition; and that is should not decide potential grounds of opposition which have not been alleged in the notice of opposition.

3. If a notice of opposition contains allegations as to the grounds of opposition which are not supported as required by Rule 55(c) EPC, such allegations in principle should be rejected on the same basis as if they were inadmissible under Rule 56(1) EPC.

4. In principle, Article 114(1) EPC should not be interpreted as requiring the Opposition Division or a Board of Appeal to investigate whether the support exists for grounds of opposition which have not been properly supported by an Opponent, but should be interpreted as enabling the EPO to investigate fully the grounds of opposition which have been both alleged and properly supported as required by Rule 55(c).