The patent opposition system provides a simple and inexpensive mechanism to increase patent quality by providing additional input to the process. These mechanisms also offer an alternative to potentially lengthy and costly judicial proceedings.
The opposition before the European Patent Office (EPO) is a post-grant and administrative procedure intended to allow any European patent to be opposed. Anyone may argue a European patent within nine months from the publication of the grant. As specified in Article 100 of the EPC, the opposition can only be based on three grounds:
- That the subject-matter of the patent is not patentable within the terms of Articles 52-57 of the EPC,
- That the invention is not disclosed clearly and completely enough for a person skilled in the art to carry it out,
- That the patent's subject-matter extends beyond the content of the application as filed.
There are three possible outcomes at the end of the proceedings:
- The opposition is rejected, and the patent is maintained as granted,
- The patent is maintained in an amended form, in which case a new patent specification is published,
- The patent is revoked.
Recently published statistics in the EPO Annual Report 2017 have shown that the opposition rate (proportion of patents which are opposed among those for which this nine months' delay expired during the stated period) was of 3,7%. In 2017, the EPO issued about 4,070 opposition decisions and, in 73% of the cases, the patents were upheld either as granted or in an amended form.
The statistics are troublesome, especially because Non Practicing Entities (NPEs, also referred to as "Trolls") infringement cases are on the rise, as we have mentioned about in our previous post.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.