At the request of the competent national court trying an infringement or revocation action, the EPO is obliged, against payment of an appropriate fee, to give a technical opinion concerning the European patent which is the subject of the action. The examining divisions are responsible for the issue of such opinions.[Art. 25; ]
Only requests from a national court in a contracting state will be accepted by the EPO. It is not, however, up to the EPO to check whether the requesting court is "competent" to deal with the action or not. The examining division, however, checks whether a European patent is the "subject of the action".
The examining division responsible for the technical opinion gives the parties an opportunity to submit arguments in writing if the court so permits. However, the parties have no right to be heard before the EPO. Nevertheless, where the examining division considers it necessary, it may invite the parties, via the court and provided that the court so permits, either to be heard before the examining division or to submit supplementary observations on specific points identified by the examining division. If the parties are heard, such a hearing is not considered to constitute oral proceedings within the meaning of Art. 116.
The technical opinion is not a decision of the EPO. The parties to the national proceedings therefore have no right of appeal before the EPO against an unfavourable opinion.
Date retrieved: 30 December 2018