The European Patent Office (EPO) opposition procedure allows any
person to challenge the validity of a European patent within nine
months of its grant. Oppositions are a commercially astute method
for revoking others' patents as an alternative or addition to
court proceedings. However, the opposition procedure has
historically taken up to three years after grant to reach a
decision – even for 'straightforward' cases. Whilst a
decision is pending, there is legal uncertainty for all
On 1 July 2016, the EPO introduced a streamlined opposition procedure that
simplifies the procedure so that opposition proceedings can be
brought to a faster conclusion. The aim is that the Opposition
Division will reach a decision within two years from grant. This is
achieved by imposing reduced time limits on both the patent
proprietor and the EPO.
Once an admissible opposition has been filed, the EPO invites
the patent proprietor to respond with observations and any
amendments to the patent. The streamlined procedure reduces the
response time limit from six months to four months except in
Typically, the opposition procedure concludes with oral
proceedings at which all parties present final arguments and the
opposition division give a decision. Under the new procedure, the
Opposition Division will set a date for oral proceedings and issue
a provisional opinion on the validity of the patent within a couple
of months from receipt of the proprietor's response. Consistent
with the current procedure, requests to change this date will only
be granted in exceptional circumstances.
Whilst the streamlined opposition procedure is likely to be
welcomed by parties of oppositions, it remains to be seen whether
the reduction in time will have any effect on the quality of the
provisional opinions and whether the new timescales are achievable
by the EPO. The new procedure also effectively removes further
opportunity for submissions and thus the opposition and the
proprietor's response should be as detailed as possible.
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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1.The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.
The UK government has not yet invoked Article 50 of the Treaty on European Union (this is likely to happen by the end of March), and the UK's actual exit from the European Union is at least two years away.
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