Third parties interested in challenging the validity of European patents can do so in opposition proceedings before the European Patent Office (EPO). Opposition proceedings before the EPO are less cost-intensive than national nullity actions against national parts of European patents. Opponents are not always successful, but there are typically good chances to have a weak patent revoked. Three examples of successful opposition proceedings are discussed in this paper.
The examples refer to pharmaceutical patents in which Indian companies were involved as opponents. As seen in these case studies, there are various objections which might be raised against the validity of a European patent, all of which could ultimately lead to the revocation of the protective right under attack. European opposition procedures can therefore be a powerful tool to eliminate unjustified patent protection and to clear the way for business in Europe.
Where patent protection for a particular invention is desired in Europe, the European Patent Convention (EPC) provides a centralized system of law which governs grant of patents effective for up to currently 38 contracting states. Such patents are called European patents and, once granted by the EPO, have the effect of a national patent granted by the contracting states, provided the validation requirements are met. The territorial effect of a granted European patent may therefore equal the effect of up to 38 national patents. The EPC is a very useful system to obtain patent protection in all major European jurisdictions and almost all other European states. In 2013, the number of patent filings at the EPO reached a new maximum of more than 265,000 applications.
As a general principle, where it is claimed that a protectable contribution to the state of the art has been made so that a patent should be issued, the public should also be able to determine whether the contribution in question deserves protection. In other words, there should be a possibility for third parties to either prevent the authorities to grant a patent in the first place, or to have a patent declared invalid after grant. This also holds true for the possibility to obtain patent protection in most European countries via the centralized system of the EPC.
The full article was published in the Indian Journal (March 2014 edition) and can be accessed here.