Selected decisions 

1. Neither the omission of a procedural act nor an error caused by miscommunication between the applicant and the representative or by an incorrect recollection of the applicant's instructions can be regarded as an error under Rule 139 EPC, provided that the document filed with the EPO is deemed to express the representative's intention at the time of filing.

2. A request for correction of a declaration of withdrawal of an appeal under Rule 139 EPC does not reopen the appeal proceedings, but only starts ancillary proceedings to decide whether the appeal proceedings should be reopened.

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.)

The burden of proof regarding the facts, arguments and evidence on the substance (which initially lies with the opponent) does not shift to the proprietor just because the patent has been revoked due to an alleged insufficient disclosure.

It is down to the patent proprietor to substantiate on appeal why that decision is wrong. The burden of proof on the substance (and in consequence the benefit of the doubt), however, is only shifted when the opposition division's assessment that the presented facts, arguments and evidence were sufficient to discharge the opponent's burden of proof turns out to be correct.

(See item 1. of the grounds)