EPO doubles down on opposition acceleration commitment

Accelerated EPO oppositions. 
The perennial topic of anguish, anger, anxiety, annoyance, etc amongst patent attorneys and litigators, alike.  With the Unified Patent Court (UPC), a new dimension arrives.  Patent litigation strategists are not just plotting out their timelines of national proceedings v EPO, but also the UPC.  

The UPC forecasted this issue and made provision in its Rules of Procedure.  Rule 298 provides for the Court of its own motion or at a request of a party requesting that EPO opposition or amendment proceedings (including any appeal) be accelerated at the EPO.  Rule 295 also gives the power to the UPC to stay their proceedings pending the EPO.  So, very similar to the national courts of most EPC contracting states.  

Cue, Kat Friend, Sir Robin Jacob (UCL).  Robin - who is the only robin that the IPKat is on friendly, non-prey terms with - shared news from the EPO that their practice will now double down on acceleration of opposition proceedings for both infringement and revocation.  

The first document passed to this Kat was a letter from EPO President Antonio Campinos.  The letter with the subject line "Revised practice for accelerating EPO opposition proceedings"  states as follows:
"The impressions from this year’s European Judges’ Forum in Venice, successfully conducted under your experienced presidency, are still very fresh. The discussions once more showed that the aim of further harmonisation in the European patent system and the interplay between UPC, national and EPO proceedings are of great interest for patent judges and lawyers alike. In this regard, I would like to inform you and your Association about a revision of the EPO’s practice to accelerate oppositions, as mentioned by my services during the Venice Symposium.

From now on, the EPO will accelerate opposition proceedings when being informed not only of infringement actions but also of revocation proceedings pending before the UPC or a national court/authority of a member state. This applies in relation to both European patents and Unitary Patents and irrespective of an explicit request. The acceleration by the EPO is in the interest of legal certainty, procedural efficiency and quality in the European patent system, for the benefit of all stakeholders.

Please find attached the notice informing about this revised practice. It will be published in the Official Journal of November 2023."

The Notice, which replaces the notice dated 24 April 2023 and will be published this month, then reads as follows:

"1. Infringement or revocation proceedings relating to a European patent or a European patent with unitary effect ("Unitary Patent") may take place before the Unified Patent Court or a national court or competent authority of a contracting state in parallel to opposition proceedings before the EPO ("parallel opposition proceedings"). In such cases, concluding the EPO parallel opposition proceedings swiftly fosters legal certainty and procedural efficiency, as well as high quality and uniformity in the European patent system. This is in the interest of parties to the proceedings, the authorities and courts involved, as well as the public.

2. The EPO will therefore accelerate its processing of parallel opposition proceedings if it is informed by the Unified Patent Court or a national court or competent authority of a contracting state that an infringement or revocation action relating to a European patent or a Unitary Patent has been instituted before it. In the absence of such information, a party to the parallel opposition proceedings may request accelerated processing at any time.

3. Where parallel opposition proceedings are accelerated, the opposition division will make every effort to issue the next procedural action (e.g. communication, summons to oral proceedings) within three months of receipt of such information or the party's request. If the information or request is received before the patent proprietor's response to the notice of opposition, the opposition division will make every effort to issue the next procedural action within three months of receipt of the latter. If applicable, oral proceedings will be (re)scheduled to take place at the earliest possible date. Requests from the parties to extend time limits over and above the normal period or to postpone oral proceedings will only be granted in exceptional, duly substantiated cases."

But we all know what comes next.  The timing.  Following the EPO streamlining in 2016, the normal time to an opposition decision went from around 22 months to 17 months (after all appeals were exhausted, the time could take 4+ years).  With the doubling down on acceleration at the EPO and competition with the UPC, the question remains: what does EPO acceleration look like in the UPC-era?

And, Sir Robin reminds you, if you want to join in on the debate as to the role of the EPO in the era of the UPC, UCL's IBIL is hosting "EPO and UPC:  Friends or Foe?" on 29 November.  Details here.  
EPO doubles down on opposition acceleration commitment EPO doubles down on opposition acceleration commitment Reviewed by Annsley Merelle Ward on Friday, November 24, 2023 Rating: 5


  1. Before doubling on oppositions, the EPO should improve the quality of the patent it grants and issue decisions in opposition which sustain a judicial review by the boards of appeal.
    In only 4% of the cases opponents filed in opposition documents that were truly not available in EPO’s search files. After appeal in opposition only 20% of patents survive untouched. 47% are revoked and 33% are maintained in amended form, i.e. with a limited scope.

    The quality of the decisions of the opposition divisions also leaves a lot to be desired. Nearly 60% of those are set aside by the boards. This happens in spite of the creation of directorates specialised in opposition.

    The figures above result from looking at more than 1000 published decisions of the boards of appeal in 2023.

    Although opposition cannot be used directly as a general quality criterion, the decisions of the boards of appeal after opposition give a good idea of what the situation could be with patents that have not been opposed.

    It is for good reasons that the IPQC complains about the quality of the work delivered by the EPO. See the interview of the head of the IPQC in another blog. For the upper management of the EPO there is no quality problem whatsoever.

  2. This sounds like a pissing contest coming up. If the UPC, with good, if not excellent judges, leaves patent untouched, will an opposition division with examiners do it better? And if the UPC revokes a patent - with appeal still open - will the opposition division allow a patent to be upheld?
    I do hope all examiners of the opposition divisions will know their places in terms of experience, expertise and legal acumen.

    This may very well be the nightmare of the president of the EPO, leaving his opposition division decimated in terms of prestige. The opposition division potentially being overtaken in terms of speed by the UPC, the examination division under heavy fire of the IPQC (for good reason, if I may say so)... Not the best times to be president of the EPO.


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