The mention of the grant of the European Patent EP1 was published in the European Patent Bulletin on 21 March 2018. An opposition was filed on 20 December 2018 based solely on the ground of lack of novelty in view of an unspecified document.
On 28 December 2018 the opponent identified the document and supplied a copy of it.
The document is prima facie highly relevant for novelty of all claims of EP1.
Can EP1 be revoked based on the document before the EPO?
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An opposition can be filed within nine months of the publication of the mention of the grant of EP1 in the European Patent Bulletin according to Art 99(1) EPC.
The time limit for filing an opposition against EP1 expired on 21 December 2018.
According to Rule 76(2)(c) EPC the notice of opposition shall contain an indication of the facts and evidence presented in support of the grounds of opposition.
The notice of opposition referred to an unspecified document, and therefore, does not meet the requirements of Rule 76(2)(c) EPC. Since the document was only identified after expiry of the opposition period, the indication of the evidence was presented too late, and the opposition will be rejected as inadmissible, Rule 77(1) EPC.
EP1 cannot be revoked based on the document.
Article 114(1) EPC or T1002/92 or Guidelines E- VI - that allows the EPO to consider documents which are prima facie highly relevant but submitted after the expiry of the opposition period applies only if an admissible opposition is pending.
This proposed reply is not a legal opinion and does not engage the responsibility of Cabinet Novitech and should not replace the consultation of a Patent Attorney.
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