Procedural Update for Opposition Proceedings before the EPO – “as of right” extensions of time no longer available

IP News

It is possible to oppose the grant of a European Patent by means of the opposition procedure before the European Patent Office (EPO).  This is generally cheaper and less burdensome than applying to revoke the granted patent through the national court of each country in which it has been validated to provide the corresponding national patent. Further, it is a cost-effective option for third parties who believe a patent should not have been granted for various reasons.  An opposition can be filed at the EPO within nine months of the date of grant of the patent.

Besides the relevant provisions of the European Patent Convention, there is a section of the Guidelines for Examination before the EPO (Part D) which provides more detailed information regarding opposition procedures, and the EPO also issues official notices in this regard when there is to be a change of practice.

An updated version of the EPO’s official notice regarding its opposition procedure has recently been published and is effective as of 1 July 2016.

The new opposition procedure generally remains the same as before (with a few updates to reflect modern practices, such as the use of electronic filing), with the exception of what appears to be a significant change to the way that extensions to time limits in opposition proceedings are obtained.

In the past, time limits fixed by the EPO in opposition proceedings would have been extended on request up to a total of six months, and reasons for requesting the extension would not have to be given.

This, however, no longer appears to be the case, as the EPO has now stated that time limits set by the opposition division in opposition proceedings will be extended only in “exceptional cases with duly substantiated requests”.

It is not entirely clear how the criterion “exceptional cases” will be applied, however guidance may be found in an earlier notice published by the EPO (OJ EPO 1989, 180), which states that

“a request for [an] extension should be allowed only exceptionally, when the reasons given are sufficient to show convincingly that a reply in the period previously laid down will not be possible. Such exceptional circumstances might be e.g. the fact that a representative or client is so seriously ill that he cannot deal with the case in time; or the need to perform extensive biological experiments or tests. On the other hand, pressure of other work should not be accepted as by itself a sufficiently exceptional circumstance.”

This interpretation of “exceptional cases” is in line with the criterion for altering the date of oral proceedings before the EPO, which also requires “exceptional, duly substantiated cases” (OJ EPO 2000, 456).

It would therefore seem that the EPO may now only be willing to extend time limits in opposition proceedings if it can be shown that it will not be possible to meet a deadline for reasons that are outside the control of the patentee or opponent and/or their representative(s).  The inability to meet the deadline would likely require corroborating evidence.

It is quite possible that the EPO will not apply this criterion quite so strictly.  However, as the EPO is yet to provide any guidance as to how the “exceptional cases” criterion will be applied, our advice is to endeavour to meet all deadlines set by the opposition division and not to rely on obtaining extensions to time limits.

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