Résumé de EPC2000 R 076 pour la décision T1408/19 du 04.07.2023

In T 1408/19 the appeal was against the decision of the opposition division rejecting the opposition. The opposition division had held that the opposition was admissible and, in particular, that the requirements of R. 76(2)(c) EPC had been met. The respondent (patent proprietor) argued that said opposition was insufficiently substantiated and therefore was not admissible due to the erroneous citation of the publication number of document E2 which meant it was not possible to identify the correct publication number of E2; unacceptable independent enquiries and further investigations would therefore have been necessary to enable the proprietor to understand the objections raised. The opposition division had cited T 344/88, in which the board concluded that it would be taking formal requirements too far to reject the opposition simply because the wrong number had been given for a cited patent specification. It accepted a correction according to R. 139 EPC and did not qualify the opposition as inadmissible. The board agreed with the opposition division that the correct publication number of E2 was retrievable without undue effort. It observed that R. 76(2)(c) EPC merely required an indication of the facts and evidence presented in support of the argued grounds for opposition, but that not necessarily every piece of evidence need already be presented along with the notice of opposition. According to the board in the case in hand, it should also be sufficient if the indications given in the notice of opposition permitted the substantive content of the evidence offered to be established only at a later stage, provided that this substantive content could be established without undue effort and still within a reasonable time. In the present case, the notice of opposition stated that the subject-matter was not new and/or inventive in view of a European patent, and detailed reasons were provided, making it at least plausible that such a patent indeed existed. The description of the citation was sufficiently detailed in the notice of opposition that the proprietor and the opposition division could clearly identify the document from the available material based on the information provided by the opponent. According to the board, the facts and evidence submitted in accordance with R. 76(2)(c) EPC were sufficient for the ground of opposition to be correctly understood by the opposition division and the proprietor. During the oral proceedings before the board, the respondent also relied on T 344/88, which, in its view, held that the opposition division should have been able to identify the correct publication number within the nine-month period according to Art. 99(1) EPC. It argued that this would not have been possible in the present case, because the notice of opposition was filed on the last day of said nine-month period. The board took the view that such a requirement could not be derived from T 344/88. The relevant passage stated the following: "It is not relevant whether the Office has actually corrected the error in the period remaining between receipt of the notice of opposition and the expiry of the opposition period. The only decisive factor is that, within the opposition period, the oversight was evident and that the description of the document enabled the opposition division to identify it beyond any doubt" (point 6.2 of the Reasons, as translated by the board). In the board's reading, the required "enablement" of the division only meant that the necessary information should be available within the time limit, not that the division also had to check whether it was indeed in a position to correct the error by itself and still within the time limit. It concluded this was the only sensible interpretation of the cited findings of T 344/88. It would be completely unrealistic to expect the opposition division to immediately check such errors. In view of the above, and in agreement with decision T 344/88, the board also took the view that in the case at hand it was decisive that all material and information necessary for (possibly later on) establishing the correct publication number of E2 was submitted prior to expiry of the nine-month period according to Art. 99(1) EPC. Thus, the admissibility of the opposition was not called into question by the erroneous publication number of E2 in the notice of opposition.