Once a patent has been granted by the European patent office, Article 99 EPC allows for a nine month period when anyone can oppose it. Oppositions are filed on only a small fraction of patents that are granted by the EPO. Most are granted unnoticed by everyone except the people concerned. Even for those who do pay attention, the cost of filing an opposition will act as a fairly strong deterrent to all who do not have deep pockets or a strong case (preferably both), together with the nerve to see the process through to its, often protracted, end. This should be borne in mind when reading the following.
European application 01309765.4, filed in 2001 by Open Business Exchange Limited (later changed to OB10 Limited), was granted as EP1220114B1 by the EPO on 29 October 2008. According to the EPO Register, this is the only patent that OB10 have had granted by the EPO, and is also the only application they have filed (and which has been published). The patent relates to a way of translating electronic invoices from one format to another, using software that translates an incoming invoice into a standard format and then translates the invoice from the standard format into another format for output. This allows businesses to issue invoices in their own format and ensure that whoever receives the invoices gets them in their own chosen format.
On May 30 2009, a blog post was written about the patent, claiming that the patent was invalid because it was an "attempt to patent an old pattern [sic] known from middleware products and VANs". As well as citing some prior art known to him, the author of the post, Mikkel Brun, mentioned that there was a 9 month period for opposition (helpfully providing a link to the appropriate form) and stated the following:
"I urge suppliers of Middleware products and service providers to send an opposition to the patent. This could hit you hard! I have been told that an opposition has to be made for each individual country covered by the patent [IPKat comment: this is wrong - one is enough], so it is not a trivial task lying in front of us."
Mr Brun then followed up with another post on 6 June 2009 detailing further references and comments about why in his view the patent was invalid.
A total of 19 notices of opposition were subsequently filed against the patent, between 10 July 2009 and the final date of 29 July 2010. Thirteen of these were filed in the last 3 days which, though slightly risky, is common practice for attorneys used to working towards tight deadlines. Except for one notice filed by Certipost NV, all were filed by European patent attorneys on behalf of their clients. Only one has since been withdrawn. Most, if not all, of the opponents must therefore have been willing to spend substantial sums of money (most likely thousands of Euros) in getting proper advice and having their notices filed for them, together with paying the official opposition fee in each case.
As a result, at the latest count, the prosecution file runs to 7833 pages. This is a lot of material to get through, and would make dealing with and defending the oppositions somewhat time-consuming. In their letter of reply to the oppositions, the proprietor's attorney stated:
"It is believed that the large number of oppositions is due to a blog created by one Mikkel Hippe Brun which can be seen at http://blog.schemaworks.com. For example, the blog has EPO Form 2300 available as a download to enable opponents to launch an opposition [IPKat comment: this is wrong - the blog only provides a link to Form 2300 hosted on the EPO's website, and provides no clues as to how it should be filled in].
Whilst it is accepted that any person may give notice of opposition under Art. 99 EPC, it is submitted that setting up a blog to inundate the proprietor with oppositions is an abusive process which puts the proprietor as a relatively small company at a significant disadvantage. The proprietor requests that the Opposition Division bears this in mind during the opposition procedure, particularly with regard to requests for extension of time and an award of costs, if deemed appropriate."
I can see how such a large number of oppositions being filed against a patent could make its proprietor a bit annoyed, but I fail to see how anyone could be held to blame for this merely as a result of publicising the fact that i) a patent has been granted and ii) an opposition could be filed, together with some ideas that might be useful in opposing the patent. If that was the case, then perhaps the IPKat himself should be worried, after he pointed out the possibility of an opposition in another case, after which several oppositions were filed.
The main function as far as I see it of the opposition procedure is to provide a way of getting patents that should not have been granted off the register before they become much harder to remove once they become purely national rights. The EPO examination procedure, thorough though it is, is not perfect, and cannot be expected to always pick up the sort of prior art that someone working in the field of technology in question would know of. This seems to be one of those cases, and I would not be surprised if the patent does not survive being opposed. It may be hard on the proprietor, but if you play the game you have to face the possibility of others playing it too.