European Patents and Oppositions
Patents are a monopoly right in the sense that they give to the patent owner the right to stop others from practising or using products, processes etc. that fall within the scope of the claims of the patent.
Every year, the European Patent Office grants thousands of European patents for different types of inventions. These European patents may have an effect in a number of the European member states. Currently there are 18 states - but that number is likely to increase in the next few years.
Companies or individuals have an automatic right to challenge European patents of others.
A challenge - which is called an opposition - has to be mounted within 9 months of grant of a European patent.
Typically an opposition is prepared and filed by a European Patent Attorney.
In the first instance, oppositions are examined by the Opposition Divisions of the European Patent Office (EPO).
When filing the opposition it is a requirement to provide the name of an opponent.
The opponent cannot be the proprietor of the European patent that is to be challenged.
However, the opponent can be someone acting on behalf of another party. This is because the Enlarged Board of Appeal of the European Patent Office in their landmark judgement of G3/97 (EPO Official Journal Volt 5 1999 pages 245 - 330) held:
"An opposition [to a European Patent] is not inadmissible purely because the person named as opponent according to Rule 55(a) EPC is acting on behalf of a third party [even if the person named as the opponent is a straw man]"
Full details of this case and other information about European patents may be found at the European Patent Office Website.
The landmark judgement specified above has since been applied and upheld in the English Court - Chancery Division - Cairnstores Limited v Aktiebolaget Hassel - 19.03.01.
