Opposition Procedure Before The European Patent Office - Filing and Admissibility

Filing and Admissibility

Before starting the substantive examination of the opposition, the Opposition Division examines whether the opposition must be considered as filed ("Is there an opposition?") and whether it is admissible ("Is the opposition admissible?"). The Opposition Division may find that the opposition is not deemed to have been filed, for instance because the opposition fee has not been paid within the nine-month opposition period, because the notice of opposition is not signed or because the notice is not in an accepted language.

In order for an opposition to be admissible it must meet the provisions of

• Article 99(1) EPC, i.e. a notice of opposition must be filed by a natural or legal person within nine months from the publication of the mention of grant of the European patent in the European Patent Bulletin (the start of the nine-month opposition period depends on the publication of the mention of grant of the European patent in the European Patent Bulletin, not on the publication of the specification of the European patent), and
• Rule 76(2)(c) EPC, i.e. a statement of the extent to which the European patent is opposed and of the grounds on which the opposition is based must be contained in the notice of opposition, as well as an indication of the facts and evidence presented in support of these grounds.

In addition, an opposition is also rejected as inadmissible if it fails to meet the requirements of Rule 76(2)(a), (b) and (d) EPC after the opponent was invited to remedy to these failures within a given time limit. If the opposition is not admissible, the opposition is rejected under Rule 77(1) or (2) EPC.

Inadmissible oppositions and oppositions which are deemed not to have been filed are not substantively examined (no examination on the merits). An opposition can only be rejected as inadmissible if the opposition has been first deemed to have been filed, and, if it is deemed to have been filed, the opposition exists, even if later the opposition is rejected as inadmissible. If an opposition is deemed not to have been filed, an already paid opposition fee is refunded. In contrast, if an opposition is rejected as inadmissible, an already paid opposition fee is not refunded.