Selected decisions 

On the admissibility of an opposition in case the publication data of a piece of evidence is erroneous in the notice of opposition (Reasons, point 2)

Rule 76(2)(c) EPC merely requires an indication of the facts and evidence presented in support of the argued grounds for opposition, but not necessarily every piece of evidence need already be presented along with the notice of opposition. For an admissible opposition it is normally sufficient that the indications given in the notice of opposition permit the substantive content of the offered evidence to be established only at a later stage, provided that this substantive content can be established without undue effort and still within a reasonable time. (Reasons, point 2.5.1)

1. The Enlarged Board of Appeal affirms its previous decisions R 8/15 and R 10/18.

2. Catchword 1, second paragraph, of R 10/18 reading: "Article 113(1) EPC is infringed if the board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the board substantively considered those submissions..." is complemented as follows:

the requirement that "the Board substantively considered those submissions" should be given the meaning that "the Board considered the contents of those submissions", with this consideration comprising matters

- pertaining to admittance of facts, evidence and requests, and/or

- relating to substantive law, i.e. the merits of a case.

(See Reasons, point 2).

3. Article 12(4) RPBA 2007 is in line with Articles 114(1) and 113(1) EPC. (See Reasons, point 3.2.2(a) in fine.)

Aufgrund folgender außergewöhnlicher Umstände ist das von der Einsprechenden verspätet eingereichte Dokument E65a im Sinne der Artikel 13 (1) und (2) VOBK 2020 im Verfahren zu berücksichtigen:

- Das Dokument war objektiv schwer auffindbar.

- Es wurde zweifellos nicht absichtlich zurückgehalten, sondern von einem Dritten erstmals in einem vom vorliegendem Einspruchsverfahren getrennten Einspruchsverfahren entgegengehalten und ist hierdurch der Einsprechenden bekannt geworden.

- Es gehört prima facie zum Stand der Technik.

- Es ist prima facie sehr relevant.

(Siehe Punkt 3.3 der Entscheidungsgründe)

1. The requirement for immediate and complete substantiation of a request for re-establishment corresponds to the principle of "Eventualmaxime/Häufungsgrundsatz/le principe de la concentration des moyens", according to which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage.

2. Dynamic interpretation of the EPC, as derived from Articles 31(1) and 31(3) Vienna Convention on the Law of Treaties, must take account of developments in national and inter­natio­nal procedural law, notably as regards the guarantees of fair trial before a tribunal of law (Article 6(1) ECHR).

3. There is no "absolute" right to oral proceedings upon a party's request, but it is subject to inherent restrictions by the EPC and procedural principles generally recognised in the Contracting States of the EPO.

4. If oral proceedings do not serve any legitimate purpose, the requirement of legal certainty in due time prevents the Board from appointing them.

5. It is not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a further chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions in the request for re-establishment.

Where opposition proceedings have been interrupted under Rule 142(1)(b) EPC, acts done by the parties or the competent body of the EPO during the period of interruption are considered invalid.

An appeal against a decision taken during the interruption is inadmissible, because it has no valid subject eligible for a judicial review.

The RPBA also apply to requests for apportionment of costs under Article 104(1) EPC.

A negligent behaviour may also justify apportionment of costs. However, the negligence must be serious enough to be considered equivalent to wilful misconduct.

The following questions are referred to the Enlarged Board of

Appeal for decision:

1. Is a product put on the market before the date of filing of a European patent application to be excluded from the state of the art within the meaning of Article 54(2) EPC for the sole reason that its composition or internal structure could not be analysed and reproduced without undue burden by the skilled person before that date?

2. If the answer to question 1 is no, is technical information about said product which was made available to the public before the filing date (e.g. by publication of technical brochure, non-patent or patent literature) state of the art within the meaning of Article 54(2) EPC, irrespective of whether the composition or internal structure of the product could be analysed and reproduced without undue burden by the skilled person before that date?

3. If the answer to question 1 is yes or the answer to question 2 is no, which criteria are to be applied in order to determine whether or not the composition or internal structure of the product could be analysed and reproduced without undue burden within the meaning of opinion G 1/92? In particular, is it required that the composition and internal structure of the product be fully analysable and identically reproducible?