Opposition procedure before the European Patent Office

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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 if it was allegedly wrongly granted. 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.

The opposition can only be based on grounds mentioned in Article 100 EPC, i.e. on the grounds that the subject-matter of the patent is not patentable, on the grounds that it is not sufficiently described to allow a person skilled in the art to carry out the invention, or on the grounds that the content of the patent extends beyond the content of the application as filed.

The notice of opposition must be filed in writing at the EPO (either at Munich, The Hague or Berlin) within nine months from the publication of the mention of the grant of the European patent, along with the payment of an opposition fee. Opposition divisions of the EPO are then responsible for the opposition procedure.

1 Filing and admissibility
2 Substantive examination
3 Issue and effects of the opposition
4 Transfer of status opponent
5 Statistics
6 See also
7 External links

[edit] Filing and admissibility

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 (Rule 1(1) EPC).

In order for an opposition to be admissible it must meet the provisions of

Article 99(1) EPC, i.e.
- a notice of opposition must be filed within nine months from the publication of the mention of grant of the European patent by a natural or legal person, and
- the notice must be filed in the form of a written reasoned statement, and
Rule 55(c) EPC, i.e. extent and grounds of the opposition must be contained in the notice, as well as an indication of facts, evidence and arguments to support the grounds.

In addition, an opposition is also rejected as inadmissible if it fails to meet the requirements of Rule 55(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 56(1) or (2) EPC.

Inadmissible oppositions and oppositions which are deemed not to have been filed are not substantively examined.

[edit] Substantive examination

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If the opposition is admissible, the grounds for opposition are examined as to their merits (Article 101 EPC).

[edit] Issue and effects of the opposition

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After the end of the opposition proceedings, the patent is either

maintained as granted, that this, the opposition is rejected (Article 102(2) EPC);
maintained in an amended form (Article 102(3) EPC). In this case, a new patent specification is published; or
revoked (Article 102(1), (4) and (5) EPC).

The opposition has an effect on all designated states in the European patent.

[edit] Transfer of status opponent

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The opponent status cannot be freely transferred. As far as legal persons are concerned, the opposition can only be transferred or assigned to a third party together with the business assets belonging to a company, i.e. its economic activity, and more precisely the assets in the interests of which the opposition was filed.

[edit] Statistics

Overall, about 5% of the European patents granted by the European Patent Office are opposed. Of those, about 1/3 are revoked, 1/3 are maintained in an amended form, which generally means "reduced in scope", and 1/3 are maintained as granted, that is, the opposition is rejected.