Can I object to a patent being granted?
It is possible as a third party to oppose the fact that a European patent has been granted. Such an opposition must however be filed within 9 months of the grant date. The grounds for opposition are limited by the European patent convention. The strongest argument against a granted patent is when prior art is identified which was not taken into consideration during the examination of the claims. In an opposition procedure, both the opposing party and the patent holder get several opportunities to submit arguments. Often this involves oral proceedings, wherein both parties defend their arguments orally before the Opposition Division. The opposition division will then take the decision either to
- maintain the patent as granted,
- reject the patent.
- maintain the patent, but with a narrower scope of protection, or
An appeal can be filed against the decision by either of the two parties adversely affected by the decision.
This opposition procedure is specific for Europe; other countries have other procedures for contesting third party patent rights.
The European patent office also provides the opportunity for third parties to comment on the patentability of pending claims during the examination procedure. In this case however, the third party does not become party to the proceedings but can only bring certain documents and/or arguments to the Examiner’s attention. Whether or not these are considered relevant is at the discretion of the Examiner.