6.6. Communications allegedly not received

Although the patent proprietor may decide not to react to the notice of opposition, the communication under R. 79(1) EPC does not constitute a mere formality, rather it allows the patent proprietor to both contribute to the opposition division's appreciation of the facts and to defend its interests. The communication forms the basis for the preparation of the factual examination of the opposition. In T 1529/20 the appellant (proprietor) submitted that they had never received the decision of the opposition division revoking their patent, only becoming aware of it and, more generally, of the opposition proceedings through an email from a formalities officer of the EPO. The board acknowledged that a party submitting that a communication had not been received would have difficulty trying to prove a negative (negativa non sunt probanda). Proving that a letter was not received was hardly ever possible. Under the circumstances of the case in hand, legal certainty and the protection of the right to be heard would have required the opposition division to establish, by any available means, the fact and date of delivery of the communication of the notice of opposition. There was nothing in the file that suggested the EPO had discharged its burden of proving delivery. Since the initial act of (non-)notification of the notice of opposition was flawed, the entire opposition proceedings including the decision of the opposition division was flawed.