In 2017 the number of EP patents opposed was 30% higher than in 2016.
The increase in EP patents opposed in 2017 follows extraordinary increases in EP patent grants in 2016 and 2017.
Typically, if EP patents are opposed, they are opposed at the end of the 9-month EPO opposition term. The chart below compares numbers of EP patents opposed in quarter years with numbers of patents granted 9 months (3 quarter-years) earlier. The patterns of patents opposed and earlier grants correlate rather well.
As the chart above shows, grants fell in the first quarter of 2017. The chart below shows that grants then increase in the second and third quarters of 2017. This suggests an increase in patents opposed 9 months later.
Opposed patents, opposed patentees
The patents opposed in 2017 belonged to about 1700 patentees. Around two thirds of those patentees had each only one patent opposed, only about one third had 2 or more patents opposed. The patentees listed below were the most opposed, with 750 opposed patents in total – 20% of all patents opposed in 2017.
Opposed patentee | No of patents opposed 2017 |
Procter & Gamble | 51 |
BASF | 40 |
GE | 40 |
Siemens | 38 |
Unilever | 27 |
Nestec S.A. | 25 |
Honeywell | 24 |
Borealis | 23 |
BSH Hausgeräte | 22 |
Dow | 21 |
Mahle | 21 |
Robert Bosch | 21 |
United Technologies | 21 |
Continental | 19 |
Evonik | 19 |
Krones AG | 18 |
Philip Morris Products | 18 |
Electrolux | 17 |
Saint-Gobain | 17 |
Bayer | 16 |
Henkel | 16 |
Krauss-Maffei | 15 |
Mitsubishi | 15 |
Amgen | 14 |
Colgate-Palmolive | 14 |
L'Oréal | 14 |
Roche | 14 |
Valeo | 14 |
3M | 13 |
CLAAS | 13 |
Dürr Systems | 13 |
ABB | 12 |
Abbott | 12 |
Giesecke & Devrient | 12 |
KCI Licensing, Inc. | 12 |
Knorr-Bremse | 12 |
Merck | 12 |
N.V. Nutricia | 12 |
ThyssenKrupp | 12 |
The 6 patents listed below were the most opposed EP patents in 2017, each receiving 10 or more oppositions.
Patent no. | Opponents | Patentee/title |
2425821 | Develco Pharma Schweiz
AG Hexal AG/Sandoz International Glenmark Pharmaceuticals Europe
KRKA, d.d., Novo mesto Acino Pharma AG Ethypharm G. L. Pharma GmbH STADA Arzneimittel Intas Pharmaceuticals Teva Pharmaceutical Industries Ltd Zentiva, k.s. |
EURO-CELTIQUE S.A. et al Pharmaceutical preparation containing oxycodone and naloxone |
2425824 | Develco Pharma Schweiz
AG Hexal AG/Sandoz International Glenmark Pharmaceuticals Europe
KRKA, d.d., Novo mesto Acino Pharma AG Ethypharm G. L. Pharma GmbH STADA Arzneimittel Intas Pharmaceuticals Teva Pharmaceutical Industries Ltd Zentiva, k.s. |
EURO-CELTIQUE S.A. et al Pharmaceutical preparation containing oxycodone and naloxone |
2425825 | Develco Pharma Schweiz
AG KRKA, d.d., Novo mesto Acino Supply AG Hexal AG / Sandoz International Glenmark Pharmaceuticals Europe STADA Arzneimittel Teva Pharmaceutical Industries Ltd Intas Pharmaceuticals Ltd. G. L. Pharma GmbH Ethypharm |
EURO-CELTIQUE S.A. et al Pharmaceutical preparation containing oxycodone and naloxone |
2175884 | Mathys & Squire LLP
Bristol-Myers Squibb Company Agenus Inc. Ablynx N.V. F. Hoffmann-La Roche AG PFIZER LIMITED European Oppositions Limited Hoffmann Eitle James Poole Limited Merck Sharp & Dohme |
GITR, Inc. Combination therapies employing GITR binding molecules |
2752189 | Glas, Holger STADA Arzneimittel AG BOEHRINGER INGELHEIM Ares Trading S.A. Generics [UK] Dehmel & Bettenhausen Hoffmann Eitle Dr. H. Ulrich Dörries Stolmár, Matthias Pfizer, Inc. | F. Hoffmann-La Roche
AG Use of anti-VEGF antibody in combination with chemotherapy for treating breast cancer |
2940044 | Hexal AG Ares Trading S.A. Pajaro Limited Samsung Bioepis UK Limited Biogen Inc. Kilger, Christian Generics [U.K.] Limited Amgen Inc. Pfizer Inc. STADA Arzneimittel AG | AbbVie Biotechnology
Ltd Anti-TNF alpha antibodies for use in therapy |
Opposed patents, technical fields
Each patent is classified according to the International Patent Classification (IPC), often being assigned to more than one IPC category (subclass, main group, subgroup). The patent will, however, have a lead or first IPC category which we take to be the most overall relevant for the invention concerned. Considering lead IPC subclasses, the patents opposed in 2017 were spread across about 400 subclasses. The top 10 lead subclasses are listed below. Around 850 opposed patents – almost 25% of opposed patents - had these lead subclasses.
Lead IPC subclass | No of patents | |
A61K | 288 | Medical, dental, or toilet preparations |
A61F | 98 | Stents, implants, prostheses etc. |
C12N | 70 | Microorganisms or Enzymes; |
A23L | 68 | Foodstuffs |
B65D | 68 | Containers for storage or transport of articles |
C08L | 58 | Compositions of macromolecular compounds |
F03D | 57 | Wind motors |
B29C | 53 | Shaping or joining of plastics |
C07C | 49 | Acyclic or carbocyclic compounds |
C11D | 48 | Detergent compositions |
More generally, taking the IPC sections to which the lead subclasses belong, the opposed patents were spread across the IPC sections as listed below.
IPC section | ||
A | 936 | Human necessities |
B | 785 | Preforming operations; transporting |
C | 773 | Chemistry; metallurgy |
D | 93 | Textiles; paper |
E | 131 | Fixed constructions |
F | 436 | Mechanical engineering; lighting; heating; weapons; blasting |
G | 208 | Physics |
H | 238 | Electricity |
Oppositions, opponents
The patents opposed in 2017 were subject to around 4500 oppositions, an average of 1.25 oppositions per opposed patent.
The oppositions were filed by about 1700 opponents. Around 1000 opponents each filed only one opposition. The opponents listed below were the most active, with a total of just short of 1000 oppositions filed – 20+% of all oppositions filed in 2017.
Opponent | Oppositions filed 2017 |
Siemens | 80 |
Henkel | 71 |
Teva | 49 |
BASF | 45 |
Arkema | 43 |
Giesecke & Devrient | 42 |
Generics (U.K.) Ltd | 40 |
ThyssenKrupp | 40 |
Procter & Gamble | 39 |
Strawman Limited | 37 |
Valeo | 34 |
Enercon | 33 |
Hexal AG | 33 |
Vestas Wind Systems | 32 |
STADA Arzneimittel | 29 |
Nestec S.A. | 28 |
Knorr-Bremse | 26 |
Mahle International | 26 |
SCA Hygiene Products | 26 |
N.V. Nutricia | 25 |
Roche | 24 |
Dow | 24 |
Saint-Gobain | 23 |
United Technologies | 23 |
Evonik | 22 |
Hoffmann Eitle | 22 |
Borealis | 21 |
Boston Scientific | 21 |
VRI-Verband der Reibbelagindustrie e.V. | 21 |
"Straw man" opponents
Some opponents are "straw man" opponents, i.e. parties who file oppositions on behalf of others. In general this is not considered to offend against EPO rules, though it is not always permissible. There are many reasons why the other parties, the principals, might wish to conceal their identities and act through "straw men". For instance, a principal may wish to conceal its interest in a particular patent or technology from a competitor (which might be the patent proprietor, another opponent or an interested party who may be watching the EPO register for opposition cases). A principal may wish to avoid direct and public confrontation with the patent proprietor in order to preserve an existing trading relationship or some other form of ongoing commercial collaboration or negotiation. Of course it is not possible to identify "hidden" straw men but it seems that approaching 200 more or less overt straw men (e.g. individual patent attorneys, patent attorney firms, law firms) were opponents in 2017 and filed over 400 oppositions - not far short of 10% of all 2017 oppositions.
Outcomes of opposition proceedings
According to the EPO Annual Report for 2017, 4072 opposition cases were decided in the first instance in that year. According to the Annual Report the first-instance outcomes in 2017 were:
First-instance outcomes of opposition proceedings | ||
Patent maintained as granted (opposition rejected) | 1262 | 31% |
Patent maintained in amended form | 1710 | 42% |
Patent revoked | 1099 | 27% |
First-instance opposition decisions are not the whole story, since they are often appealed.
A total of over 3100 opposition proceedings were finally settled in 2017 - either as the outcome after appeal or, if no appeal was entered, when the first-instance decision became legally binding. There were 6 cases in which oppositions were deemed not filed, two in which oppositions were found to be inadmissible and 234 cases in which opposition proceedings were terminated without a decision (e.g. oppositions withdrawn). For cases decided on the merits in 2017, the final outcomes were:
Final outcomes of opposition proceedings | ||
Patent maintained as granted (opposition rejected) | 704 | 24% |
Patent maintained in amended form | 1121 | 39% |
Patent revoked | 1056 | 37% |
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.