Substantive examination of the opposition
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183
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Once these preliminaries have been completed, the opposition division examines whether the grounds for opposition prejudice the maintenance of the European patent. If necessary it will invite the parties to file observations on its or other parties' communications within a period which it specifies.
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Art. 101
R. 58(1)-(3)
Guid. D-V, VI
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In any communication sent to him in this way, the proprietor will where appropriate be invited to file the description, claims and drawings in amended form where necessary. Late-filed proposals for amendment need not be considered.
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R. 58(2)
Guid. D-VI, 4.2
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If oral proceedings have to be arranged at the request of a party or at the instance of the EPO where it considers them expedient, the parties are summoned to them as quickly as possible.
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Art. 116(1),
R. 71
Guid. D-VI, 1, 3.2
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In a note annexed to the summons, the opposition division lists and explains the points that in its view need to be discussed for the purpose of the decision that has to be taken. The note generally also includes the opposition division's provisional and non-binding opinion on the positions adopted by the parties, and in particular on amendments to the patent filed by its proprietor. At the same time, the opposition division fixes a final date for filing written submissions or amendments in preparation for the oral proceedings. New facts and evidence presented after that date need not be considered, unless admitted on the grounds that the subject of the proceedings has changed.
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R. 71a
Guid. D-VI, 3.2; Guid. E-III, 8.6
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184
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If the opposition division finds that the grounds for opposition prejudice the maintenance of the European patent, it revokes the patent.
If it finds that the grounds do not prejudice the maintenance of the patent as granted, it rejects the opposition.
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Art. 102
R. 58(4)-(7)
Guid. D-VIII
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185
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If it finds that the patent can be maintained in amended form, it delivers an interlocutory decision stating that, with the amendments made by the proprietor, the patent and the invention to which it relates meet the requirements of the EPC.
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Art. 113
Guid. D-VI, 7.2
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An interlocutory decision of this nature, against which a separate appeal is allowed, is delivered whenever a patent is maintained in amended form.
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186
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Once the interlocutory decision becomes final, the proprietor is given three months in which to pay the fee for printing a new specification and file a translation of any amended claims in the two official languages other than the language of the proceedings.
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Art. 102(3)(b), (5)
R. 58(5)
Guid. D-VI, 7.2.3
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187
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If these acts are not performed in due time, they may still be validly performed within two months of notification of a communication pointing out the failure to observe the time limit, provided that a surcharge equal to twice the fee for printing a new specification is paid within this period.
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R. 58(6)
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If either of the acts is not performed within this grace period either, the patent is revoked.
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Art. 102(4), (5)
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188
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The contracting states make the amended text subject to the same translation requirements as the patent specification (see point 176 and Annex V).
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Art. 65
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D. The European patent grant procedure
Examining the notice of opposition for admissibility
