The European Patent Office Introduces A 'Go-Faster' Opposition Process

The European Patent Office (EPO) has announced that from 1 July 2016, post-grant oppositions will be reformed so that they become significantly faster and more efficient.1 The effect of these changes is that in straightforward cases, the decision in a first instance opposition will be issued within 15 months of the close of the opposition period (which is nine months after the date the European patent was granted).

This is a significant acceleration of the previously notoriously slow opposition procedure. It will be of strategic importance to patentees and their competitors alike, especially against the background of the impending introduction of the Unified Patent Court, and the concerns expressed by national courts in Europe about the significant lack of commercial certainty imposed by the hitherto lengthy EPO opposition procedure.

The EPO's pre-July 2016 opposition procedure has been roundly criticised by courts across Europe for its lengthy and open-ended process. "Normal" cases take an average of between four to eight years through to final determination (including appeals). As most European countries stay national litigation pending resolution of an EPO opposition - including the key issue of infringement, which is the exclusive prerogative of the national courts, not the EPO - this can have a chilling effect on business. These reforms demonstrate the EPO's wish to reconfigure its procedures preparatory to the introduction of the Unified Patent Court sometime in 2017, so that the EPO opposition timelines broadly conform with the UPC litigation ones. Patent proprietors and their competitors should now be recalibrating their European patent litigation strategies, including in countries such as England and the Republic of Ireland that do not always stay national litigation pending the result of an EPO opposition. This truncated timeline offers significant strategic opportunities and threats, although it remains to be seen whether the EPO can deliver this faster opposition process, or how easily a determined party can derail it in practice. Nonetheless, these reforms show the EPO as being determined to offer a competing route to central revocation of a European patent, to that offered by the forthcoming Unified Patent Court. While not in itself conclusive, this change in EPO opposition timelines will also change the balance of discretionary factors that the English courts consider when deciding whether or not to order a stay of English...