Patent Oppositions - Perspectives

Patent opposition is a remarkable way to challenge the validity of a granted patent in front of a Patent Office. The European Patent Office (EPO) opposition system has served as a model for many other patent offices. Some of the benefits include the ability to eliminate from the granted patent world those patents of very questionable validity. In other cases, it results into patent limitations - at a relatively low cost (compared to a court litigation) and in a reasonable time. The legal certainty (on patent validity) resulting from the opposition proceedings are beneficial for both the general public and the industry in the field. Potential litigations are reduced; Innovation, Research and Product Development are boosted by the clarity obtained on freedom to operate.

If oppositions proceedings have local/regional effects, the regional decisions are certainly observed by the other jurisdictions having to statute on the same or similar matters. Of note, the soon-coming Unified Patent Court (UPC) in Europe may give another chance for testing patent validity via a central review (Europe-wise). We will see how the systems interplay in case of litigations.

In any case, more robust patents are the out-come of opposition proceedings. And that's positive: According to a review by Haseltine Lake Kempner, available here : https://www.hlk-ip.com/news-and-insights/epo-oppositions-update-2021/ , about 35% of opposed patents die during oppositions, while 41% are somewhat amended (EPO proceedings). Having stronger, more robust, patents are key for patent owners.

Patent opposition frequency varies much by industry type : While consumer goods and electronics companies fight hard on many patents, pharmaceutical companies tend to have a lower number of oppositions but with more opponents/parties - a hard fight against few key patents. (see figures)

Nestlé is shown to be #3 in defensive patent oppositions and #4 in offensive patent oppositions, across all industries.

Good or bad, this not only keeps patent practitioners like me (very) busy, but insures that companies play a fair game with patents, having strong IP rights, and that their innovation pipeline can deploy full horsepower.

(Thanks to Haseltine Lake Kempner - James Ward and David Lewin - for making the compilation of data available).

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