Opposition Procedure Before The European Patent Office - Outcome and Effects of The Opposition

Outcome and Effects of The Opposition

After the end of the opposition proceedings, the patent is either

• maintained as granted, if the opposition is rejected or if the Opposition Division decides to discontinue the opposition proceedings (the Opposition Division may decide to do so notably if the sole opposition or all the oppositions have been withdrawn and the patent proprietor is therefore the only remaining party to the proceedings);
• maintained in an amended form—in this case, a new patent specification is published—; or
• revoked.

The opposition has effect on all designated states in the European patent. Decisions by Opposition Divisions, like any other final decisions of first instance divisions, are appealable.

A decision of the EPO to revoke a European patent is final (when the opportunity to appeal before the EPO is exhausted), which makes the opposition proceedings at the EPO especially attractive for opponents. In contrast, a decision of the EPO not to revoke a European patent (the decision instead maintaining the patent as granted or in an amended form) leaves the way open for revocation by the national court. The EPO decision does not create an estoppel precluding a subsequent challenge by an unsuccessful opponent at the national level (at least before the English courts). The validity of a European patent can be scrutinised both at the national level, before a national court, and at the international level, before the European Patent Office during opposition. The same is not true for infringement proceedings, upon which national courts exercise exclusive jurisdiction.