Update On Oppositions And Opposition Appeals

"Early Certainty from Opposition"?

In mid-2016 the EPO introduced "Early Certainty from Opposition", announcing that streamlined internal workflows would apply to first-instance opposition proceedings as from 1 July 2016: see notices in the EPO Official Journal, May 2016, A42 and A43. A stated intention was to reduce the time needed for a first-instance decision in "straightforward" cases to 15 months from expiry of the opposition term. Perhaps reasonably enough, no attempt was made to define "straightforward".

Intended or possible effects of EPO-internal "streamlining" on requirements to be made of parties to proceedings were not particularly spelled out in the May 2016 notices. They indicated that the term to be set for the patentee to respond to the notice(s) of opposition would be 4 months, extendible only in exceptional cases, as was previously so (see e.g. Rule 132 EPC). In the November 2016 version of the Guidelines for Examination at the EPO, a passage was amended to emphasize that extensions would be granted "only in exceptional, duly substantiated cases". This was maintained in the November 2017 version of the Guidelines (Part E, Chap. VIII, 1.6 Extension of a time limit).

The notices also indicated that the time between issue of a summons to oral hearing and the hearing date would now normally be at least 6 months (up from 4 months) and that the deadline for final written submissions would now normally be set at 2 months before the hearing (rather than 1 month). These changes were incorporated into the November 2016 Guidelines and maintained in the November 2017 Guidelines (Part E, Chap. III, 6. Summons to oral proceedings; Part D, Chap. VI, 3.2. Summons to oral proceedings).

The schematic above outlines steps in opposition proceedings. It does not indicate all possibilities, but shows steps in the procedure which are more or less common.

If only the notice of opposition and the patentee's response need be considered - i.e. if the Opposition Division finds no reason to issue any communication and no further submissions are required of or made by a party or parties, and an oral hearing is not needed - the case could be ready for decision around 6 to 9 months after the expiry of the opposition term. If an oral hearing is needed then it might just be possible to schedule the hearing within 15 months of expiry of the opposition term. However, it seems unlikely that the 15-month target could be met if additional submissions are made...