If the opposition division considers that the patent can be maintained on the basis of the text submitted or approved by the patent proprietor, and the opponent has had sufficient opportunity to comment on this text – either in writing or during oral proceedings – as well as on the reasons decisive to the patent's maintenance, the opposition division will issue an interlocutory decision to the effect that the patent and the invention to which it relates meet the requirements of the EPC following the amendments made by the patent proprietor during the opposition proceedings.
If the patent can only be maintained on the basis of an auxiliary request, the decision has to contain a reasoned statement why the version of the main request (and any higher-ranking auxiliary request) does not meet the requirements of the EPC (see T 234/86).
A separate appeal under Art. 106(2) is allowed against this decision, which must be reasoned having regard to the grounds for opposition maintained by the opponent or taken up by the opposition division. The decision is delivered in all cases where a European patent is maintained in amended form, even if the opponent has approved of the text communicated by the opposition division or has not commented on it. In the former case, the decision is fairly brief, merely noting that in the light of the amended text the opponent no longer maintains his original grounds for opposition. If this decision is not contested, the ruling enshrined in it becomes final and as a result the documents can no longer be amended.
This interlocutory decision is intended to save the patent proprietor unnecessary translation costs arising from an amendment to the text in appeal proceedings. It nevertheless qualifies as a grant decision in the sense of G 1/10 and corrections can only be requested in the narrow ambit provided for in Rule 140 (see H-VI, 3.1).
Date retrieved: 30 December 2018