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Opposition procedure before the European Patent Office
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Opposition procedure before the European Patent Office
The opposition procedure before the European Patent Office (EPO) is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed. European patents granted by the EPO under the European Patent Convention (EPC) may be opposed by any person from the public (no commercial or other interest whatsoever need be shown). This happens often when some prior art was not found during the grant procedure, but was only known by third parties.
An opposition can only be based on a limited number of grounds, i.e. on the grounds that the subject-matter of the patent is not patentable, that the invention is insufficiently disclosed, or that the content of the patent extends beyond the content of the application as filed. The notice of opposition to a European patent must be filed in writing at the EPO (either at Munich, The Hague or Berlin), along with the payment of an opposition fee, within nine months from the publication of the mention of the grant of the patent in the European Patent Bulletin. Opposition Divisions of the EPO are responsible for the examination of oppositions. The opposition procedure may involve multiple opponents. According to the EPO, a European patent was once opposed by a record number of 27 opponents.
The purpose of the EPO opposition proceedings is to give members of the public, such as competitors of the patent proprietor, the opportunity to challenge centrally before the EPO the validity of a granted European patent. No commercial or any other interest whatsoever need be shown. That is, the "opponent's motives are of no relevance for the purposes of the opposition procedure".
Opponents may challenge only some of the claims of the European patent (although this is in practice rather unusual), therefore limiting the extent of the opposition to the challenged claims.
However, an opposition can only be based on a limited number of grounds (i.e., objections) specified in the European Patent Convention, namely the grounds listed in Article 100 EPC. An opposition can be based on the grounds that the subject-matter of the patent is not patentable (Article 100(a) EPC, for instance because the claimed invention is not new or not inventive), on the ground that the invention is insufficiently disclosed to allow a person skilled in the art to carry it out (Article 100(b) EPC), or on the ground that the content of the patent extends beyond the content of the application as filed –"or, if the patent was granted on a divisional application or on a new application filed under Article 61 EPC, beyond the content of the earlier application as filed"– (Article 100(c) EPC). For example, an opposition cannot be validly based on the grounds that the invention lacks unity (Article 82 EPC), that the claims are not clear (Article 84 EPC), or that the right to the European patent does not belong to the proprietor of the patent (Article 60(1) EPC).
Before starting the substantive examination of the opposition, the Opposition Division examines whether the opposition must be considered as filed ("Is there an opposition?") and whether it is admissible ("Is the opposition admissible?"). The Opposition Division may find that the opposition is not deemed to have been filed, for instance because the opposition fee has not been paid within the nine-month opposition period, because the notice of opposition is not signed, or because the notice is not in an accepted language.
In order for an opposition to be admissible it must meet the provisions of
In addition, an opposition is also rejected as inadmissible if it fails to meet the requirements of Rule 76(2)(a), (b) and (d) EPC after the opponent was invited to remedy to these failures within a given time limit. If the opposition is not admissible, the opposition is rejected under Rule 77(1) or (2) EPC.
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Opposition procedure before the European Patent Office
The opposition procedure before the European Patent Office (EPO) is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed. European patents granted by the EPO under the European Patent Convention (EPC) may be opposed by any person from the public (no commercial or other interest whatsoever need be shown). This happens often when some prior art was not found during the grant procedure, but was only known by third parties.
An opposition can only be based on a limited number of grounds, i.e. on the grounds that the subject-matter of the patent is not patentable, that the invention is insufficiently disclosed, or that the content of the patent extends beyond the content of the application as filed. The notice of opposition to a European patent must be filed in writing at the EPO (either at Munich, The Hague or Berlin), along with the payment of an opposition fee, within nine months from the publication of the mention of the grant of the patent in the European Patent Bulletin. Opposition Divisions of the EPO are responsible for the examination of oppositions. The opposition procedure may involve multiple opponents. According to the EPO, a European patent was once opposed by a record number of 27 opponents.
The purpose of the EPO opposition proceedings is to give members of the public, such as competitors of the patent proprietor, the opportunity to challenge centrally before the EPO the validity of a granted European patent. No commercial or any other interest whatsoever need be shown. That is, the "opponent's motives are of no relevance for the purposes of the opposition procedure".
Opponents may challenge only some of the claims of the European patent (although this is in practice rather unusual), therefore limiting the extent of the opposition to the challenged claims.
However, an opposition can only be based on a limited number of grounds (i.e., objections) specified in the European Patent Convention, namely the grounds listed in Article 100 EPC. An opposition can be based on the grounds that the subject-matter of the patent is not patentable (Article 100(a) EPC, for instance because the claimed invention is not new or not inventive), on the ground that the invention is insufficiently disclosed to allow a person skilled in the art to carry it out (Article 100(b) EPC), or on the ground that the content of the patent extends beyond the content of the application as filed –"or, if the patent was granted on a divisional application or on a new application filed under Article 61 EPC, beyond the content of the earlier application as filed"– (Article 100(c) EPC). For example, an opposition cannot be validly based on the grounds that the invention lacks unity (Article 82 EPC), that the claims are not clear (Article 84 EPC), or that the right to the European patent does not belong to the proprietor of the patent (Article 60(1) EPC).
Before starting the substantive examination of the opposition, the Opposition Division examines whether the opposition must be considered as filed ("Is there an opposition?") and whether it is admissible ("Is the opposition admissible?"). The Opposition Division may find that the opposition is not deemed to have been filed, for instance because the opposition fee has not been paid within the nine-month opposition period, because the notice of opposition is not signed, or because the notice is not in an accepted language.
In order for an opposition to be admissible it must meet the provisions of
In addition, an opposition is also rejected as inadmissible if it fails to meet the requirements of Rule 76(2)(a), (b) and (d) EPC after the opponent was invited to remedy to these failures within a given time limit. If the opposition is not admissible, the opposition is rejected under Rule 77(1) or (2) EPC.