5.5.5Substantive examination of the opposition 

5.5.007Once 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. 

Upon receipt of a communication sent in this way, the proprietor may file the description, claims and drawings in amended form where necessary. Late-filed proposals for amendment might not be considered. 

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 summonses are issued as soon as possible. Oral proceedings in opposition are held by videoconference. 

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 might not be considered, unless admitted on the grounds that the subject of the proceedings has changed. 

5.5.008If 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. 

5.5.009If the opposition division 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. A separate appeal is allowed against such an interlocutory decision. 

5.5.010Once the interlocutory decision under point 5.5.009 becomes final, the proprietor is given three months in which to pay the fee for publishing a new specification and file a translation of any amended claims in the two official languages other than the language of the proceedings.

If the proprietor has filed handwritten amendments during oral proceedings, they will be invited to file the amended text in a form compliant with Rule 49(8) within the above-mentioned three-month period.

5.5.011If 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 is paid within this period. 

5.5.012The contracting states make the amended text subject to the same translation requirements as the patent specification (see point 5.4.023).