UK: EPO Oppositions Newsletter - Surge In Oppositions Matches Surge In Grants

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
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
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.
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.
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
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
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.

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