Substantive Examination
If the opposition is admissible, the grounds for opposition are examined as to their merits. The patent proprietor has also the opportunity to reply to the grounds of opposition developed by the opponent. Arguments and, to a certain extent, amendments may be filed in reply by the patent proprietor.
In view of the grounds of opposition, and in view for instance of a prior art document introduced into the proceedings by the opponent, the patent proprietor may amend the patent, i.e. the description, claims and drawings of the patent, although amendments may not be filed at any stage during the opposition proceedings. The patent proprietor is master of its own patent in that the decision to amend or not, and how to amend the patent, is a decision of the patent proprietor alone (although the Opposition Division or the opponent may apply pressure to have amendments made). The patent, however, may not be amended in such a manner that the amendment would lead to an extension of the protection conferred by the patent.
If amendments are made to the patent during the opposition proceedings, the patent (and the invention to which it relates) must meet the requirements of the EPC. These requirements notably include the requirements of support in the description and clarity (Article 84 EPC), even though those are not listed as grounds of opposition in Article 100 EPC. However, the requirements to be met by the amended patent do not include the requirement of unity of invention (because divisionals cannot be filed after grant).
During the opposition, oral proceedings may take place at the request of the EPO or at the request of any party to the proceedings, i.e. the patentee or an opponent. The oral proceedings are held before the Opposition Division itself. They are held in Munich, the Hague or Berlin, and are public unless very particular circumstances apply. This contrasts with oral proceedings held before an Examining Division, which are not public. The list of public oral proceedings in opposition before the EPO is available on its web site. The right to oral proceedings is a specific and codified part of the procedural right to be heard. A decision is often taken at the end of the oral proceedings.
Read more about this topic: Opposition Procedure Before The European Patent Office
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