h) Examples – sufficient substantiation denied 

In T 182/89 (OJ 1991, 391) the board took the view that, if a notice of opposition alleging insufficiency under Art. 100(b) EPC 1973 as the sole ground for opposition contained a mere statement that one example in the patent had been repeated once "exactly as described" without obtaining exactly the described results as claimed in the patent, the notice of opposition should be regarded as inadmissible even if the alleged facts were subsequently proved.

In T 550/88 (OJ 1992, 117) the board of appeal considered whether national prior rights could as a matter of law constitute "facts or evidence" relevant to the ground of lack of novelty under Art. 54(1) and (3) EPC 1973. In the board's judgment, on the proper interpretation of Art. 54(3) EPC 1973, national prior rights were not comprised in the relevant state of the art. The board decided that the opposition was inadmissible because the only facts and evidence indicated in the notice of opposition were references to national prior rights.

According to T 613/10, the admissibility of the opposition has to be decided in the light of the circumstances of the case, especially if the requirements of R. 76(2)(c) EPC are not clearly and unambiguously met. Those circumstances include not just the technical complexity of the subject-matter in the opposed patent and the citations but also the number of claims and the number of citations – even if in principle an opposition can contain any number of attacks or citations. The patent proprietor should not have to try and work out the opponent's case for himself, from inadequate information given in the notice of opposition. In the case before the board, notice of opposition had been filed within the opposition period on the official form and two additional sheets. These listed 26 items of evidence, which however were filed, together with a detailed statement, only after the period expired. The notice had indicated the grounds of lack of novelty and lack of inventive step but did not say which citations related to which. None of the cited passages or drawings had been compared with the features of any of the 26 claims; nor had any technical connection been established between the citations and the claims. The board concluded that the requirements of R. 76(2)(c) EPC were not fulfilled.

In the similar case T 296/17, where the opponent filed nineteen pieces of evidence and a notice of opposition of one page which neither substantiated any of the grounds for opposition nor referred to any relevant paragraph of the evidence filed, the board likewise considered the opposition inadmissible. The board rejected the appellant's argument that the opposition division should have examined the opposition of its own motion.