UK: EPO Annual Report And Statistics 2018

Last Updated: 26 June 2019
Article by James Ward and David Lewin

According to the EPO Annual Report & Statistics for 2018 the number of European patents opposed fell in 2018 following a sharp rise in patents opposed in 2017. A fall in patents opposed is a surprise in view of the increases in the numbers of European patents granted in recent years. Of course, the term within which opposition must be filed is nine months from patent grant, and experience indicates that oppositions are most typically filed close to the end of the nine-month term. As a result, the number of patents granted in a year is not the same as the number of patents which are opposable in that year. However, recent EPO annual reports have provided information, not only on the numbers of patents granted each year, but also on the numbers of patents opposable, which have been increasing in line with numbers of patents granted. 

Based on the numbers of patents opposable and patents opposed it is evident that the rate of opposition has fallen significantly in recent years.

According to the EPO Annual Report & Statistics for 2018, and earlier reports, the median duration of first instance opposition procedures (months from expiry of the nine-month opposition term to the issue of the first instance decision) has fallen, particularly from 2016 to 2018.

Notwithstanding the reduction in duration of proceedings, the number of opposition cases decided in the first instance each year has, for some reason, stagnated from 2016 to 2018.  Nevertheless, the number of opposition cases decided in the first instance exceeded the number of patents newly opposed in each year from 2016 to 2018, indicating a fall in the stock of undecided opposition cases.

For opposition cases decided in the first instance, the main possible outcomes are (i) patent revoked, (ii) patent upheld in amended form, (iii) opposition rejected (patent upheld as granted). 

For first instance decisions each year the annual reports from 2014 to 2018 indicate proportions accounted for by those three outcomes. The proportion of decisions with the outcome "patent revoked" has fallen somewhat, from 31% in 2014 to 27% in 2017 and 2018. This is reflected in an increase in the proportion of decisions with the outcome "patent upheld in amended form". The proportion of decisions with the outcome "opposition rejected (patent upheld as granted)" has remained rather constant at 31% or 32%.

Around 4350 oppositions were filed against the 3400 patents opposed in 2018: on average each opposed patent was the subject of 1.27 oppositions. Two patents (EP2425821 & EP2425824, both entitled "Pharmaceutical preparation containing oxycodone and naloxone") received 11 oppositions each. Unusually, these patents have each more patentees (13, for different countries) than opponents. The first-named patentee, "Euro-Celtique SA" appears to be a patent holding agent for the other companies involved.

Although none of the opponents to the two most opposed patents appear to be "strawman" opponents, such opponents appear to be rather common. One patent (EP2782997 "Scalable lentiviral vector production system compatible with industrial pharmaceutical applications") received 8 oppositions in 2018, of which 5 were filed by what appear to be strawman opponents. Naturally, it is impossible to identify strawman opponents with certainty, but those which are more or less overt (patent attorneys etc.) seem to account for 10% or more of all oppositions filed in 2018. In the table of opponents with 20 or more oppositions filed in 2018, strawman opponents are 2nd, 4th and 13th.

"Strawman" opponents aside, it seems that opponents are often also opposed patentees. This is exemplified by the table of patentees with 20 or more patents opposed in 2018. 9 of the patentees in that table also appear in the table of opponents with 20 or more oppositions filed in 2018.

The patentee 2nd in the table, "Signify Holding B.V.", has not appeared previously. It appears to be the new name of Philips Lighting, a member of the Philips group. The oppositions filed against "Signify Holding B.V." patent appear largely to be strawman oppositions.

First instance opposition decisions are often subject to appeal by one or more parties to the proceedings. Following the increase in numbers of first instance decisions since 2014, 500 (37%) more opposition appeals were filed in 2018 than in 2014. Over that period of time, the proportion of first instance opposition decisions subject to appeal, roughly estimated, was between 42% and 46%.

The number of opposition appeals settled was 350 (30%) higher in 2018 than in 2014 but the number settled each year has not kept up with the number of opposition appeals newly filed each year. The stock of pending opposition appeal cases rose to 5563 at the end of 2018.

Not all opposition appeals which are settled are settled by a decision of the Boards of Appeal. About a third are settled without a decision: the appeal might have been withdrawn or the patent lapsed in all EPC member countries etc. Then, the first instance decision stands unaltered. Of the two thirds of opposition appeals which are settled by a decision of the Boards of Appeal the great majority are decided on the merits of the substantive issues in the case. In some few cases (5% to 7%) the appeals are decided on what could be called formal grounds, for example the appeals being found to be inadmissible.

The EPO's "EP Bulletin Search" database indicates that final outcomes of oppositions, including those in which first instance outcomes were revised on appeal, differ somewhat from first instance outcomes as reported in annual reports. In particular the proportion of cases with "patent upheld in amended form" appears to be less in final outcomes, with consequent differences to the proportions of the other main possible outcomes. The database also indicates that the proportion of cases not decided on the merits in the first instance (and consequently with no appeal available) is rather small (ca. 7%/8%).

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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