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This article incorporates text from a free content work.Licensed under CC-BY-4.0.Text taken from Opposition Systems ,WIPO.
Patent opposition proceedings are administrative mechanisms within the patent law framework that allow third parties to formally challenge the validity of a pending patent application (pre-grant opposition) or a granted patent (post-grant opposition). [1] [2] These opposition proceedings serve as a crucial check within the patent system, ensuring that patents are granted only for inventions that genuinely meet all legal requirements, thereby maintaining the integrity and quality of the patent landscape. [1]
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There are primarily two types of patent opposition systems, each with distinct procedures and strategic implications:
Pre-grant opposition allows third parties to oppose a patent application before the patent is officially granted. This system provides an opportunity to prevent the issuance of a patent that may not satisfy the patentability criteria. Pre-grant opposition proceedings typically commence after the patent application has been published but before the substantive examination is completed by patent examiners. In some jurisdictions, the opposition period starts after a positive examination result, where the patent office indicates an intention to grant the patent. [1]
Procedures: An opponent must file a notice of opposition within a specified time frame, stating the grounds for opposition and providing supporting evidence. The patent applicant is notified and given the opportunity to respond, amend the application, or provide counterarguments. The patent office then reviews the submissions from both parties before making a decision.
Post-grant opposition permits third parties to challenge the validity of a patent after it has been granted. This system is crucial for correcting any oversight that may have occurred during the examination process. The opposition must be filed within a specific period after the patent grant, commonly ranging from six to twelve months, depending on the jurisdiction. [1]
Procedures: Similar to pre-grant opposition, the opponent submits a notice outlining the grounds for opposition with supporting evidence. The patentee is notified and can respond or amend the patent claims. The patent office evaluates the arguments and evidence presented by both parties to determine whether the patent should be maintained, amended, or revoked.
The opposition system is integral to the patent framework for several reasons: [1]
While the fundamental purpose of opposition systems is consistent, their implementation can vary significantly across jurisdictions:
Opposition proceedings offer several benefits over judicial revocation processes: [1]
Implementing an effective opposition system involves balancing several factors: [1]
In addition to opposition proceedings, several other mechanisms enable third parties to influence the patent granting process or challenge patents:
Each country may have its own reasons to introduce opposition procedures, or not to introduce such procedures, under its national law. Among the countries that have an opposition system, procedural and substantive requirements have some common aspects, but are different in details. Such differences may include: pre-grant or post-grant opposition, entitlement to file an opposition, period for filing an opposition, grounds for an opposition etc. [14]
In the context of the proceedings at the European Patent Office (EPO), third parties may challenge the validity of a granted European patent by filing a post-grant opposition under the European Patent Convention (EPC). [15] The term for filing an opposition with the EPO is nine months from the publication of the mention of the grant of the European patent in the European Patent Bulletin. [15]
Opposition proceedings may be filed against French patents granted since April 1, 2020. [16] [17] The term for filing an opposition with the National Institute of Industrial Property (INPI) is nine months from the grant of the French patent. [16] An opposition may be filed by a strawman. [17] [18]
Under United States patent law, an opposition proceeding is called a reexamination. Post-grant review provisions of the new patent law may affect a potential patent infringement defendant's strategies in filing a declaratory judgment action. Subsequent to the Leahy–Smith America Invents Act (2011), any third party can challenge the validity of an issued patent using either post-grant review under 35 U.S.C. § 321 or inter partes review under 35 U.S.C. § 311. Both proceedings became effective September 16, 2012. [19]
This article incorporates text from a free content work.Licensed under CC-BY-4.0.Text taken from Opposition Systems ,WIPO.
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights.
The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. The term European patent is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally enforceable, nationally revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.
Prior art is a concept in patent law used to determine the patentability of an invention, in particular whether an invention meets the novelty and the inventive step or non-obviousness criteria for patentability. In most systems of patent law, prior art is generally defined as anything that is made available, or disclosed, to the public that might be relevant to a patent's claim before the effective filing date of a patent application for an invention. However, notable differences exist in how prior art is specifically defined under different national, regional, and international patent systems.
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. By extension, patentability also refers to the substantive conditions that must be met for a patent to be held valid.
The European Patent Convention (EPC), the multilateral treaty instituting the legal system according to which European patents are granted, contains provisions allowing a party to appeal a decision issued by a first instance department of the European Patent Office (EPO). For instance, a decision of an Examining Division refusing to grant a European patent application may be appealed by the applicant. The appeal procedure before the European Patent Office is under the responsibility of its Boards of Appeal, which are institutionally independent within the EPO.
The opposition procedure before the European Patent Office (EPO) is a post-grant, contentious, inter partes, administrative procedure intended to allow any European patent to be centrally opposed. European patents granted by the EPO under the European Patent Convention (EPC) may be opposed by any person from the public. This happens often when some prior art was not found during the grant procedure, but was only known by third parties.
Patent prosecution is the interaction between applicants and a patent office with regard to a patent application or a patent.
European patent law covers a range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. For some states in Eastern Europe, the Eurasian Patent Convention applies.
An opposition proceeding is an administrative process available under the patent and trademark law of many jurisdictions which allows third parties to formally challenge the validity of a pending patent application, of a granted patent, or of a trademark.
A patent application is a request pending at a patent office for the grant of a patent for an invention described in the patent specification and a set of one or more claims stated in a formal document, including necessary official forms and related correspondence. It is the combination of the document and its processing within the administrative and legal framework of the patent office.
This is a list of legal terms relating to patents and patent law. A patent is not a right to practice or use the invention claimed therein, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor or their successor in rights in exchange to a public disclosure of the invention.
The involvement of the public in patent examination is used in some forms to help identifying relevant prior art and, more generally, to help assessing whether patent applications and inventions meet the requirements of patent law, such as novelty, inventive step or non-obviousness, and sufficiency of disclosure.
The grant procedure before the European Patent Office (EPO) is an ex parte, administrative procedure, which includes the filing of a European patent application, the examination of formalities, the establishment of a search report, the publication of the application, its substantive examination, and the grant of a patent, or the refusal of the application, in accordance with the legal provisions of the European Patent Convention (EPC). The grant procedure is carried out by the EPO under the supervision of the Administrative Council of the European Patent Organisation. The patents granted in accordance with the EPC are called European patents.
In European patent law, the limitation and revocation procedures before the European Patent Office (EPO) are post-grant, ex parte, administrative procedures allowing any European patent to be centrally limited by an amendment of the claims or revoked, respectively. These two procedures were introduced in the recently revised text of the European Patent Convention (EPC), i.e. the so-called EPC 2000, which entered into force on 13 December 2007.
A trademark is a form of intellectual property that consists of a word, phrase, symbol, design, or a combination that identifies a product or service from a particular source and distinguishes it from others. Trademarks can also extend to non-traditional marks like drawings, symbols, 3D shapes like product designs or packaging, sounds, scents, or specific colors used to create a unique identity. For example, Pepsi® is a registered trademark associated with soft drinks, and the distinctive shape of the Coca-Cola® bottle is a registered trademark protecting Coca-Cola's packaging design.
Patent law in modern mainland China began with the promulgation of the Patent Law of the People's Republic of China, in 1984. This law was modeled after patent systems of other civil law countries, particularly Germany and Japan.
Under the European Patent Convention (EPC), any third party –i.e., essentially any person– may file observations on the patentability of an invention which is the subject of a European patent application or, after grant, subject of a European patent, especially to draw the attention of the European Patent Office (EPO) to some relevant prior art documents. This is a form of public participation in the examination of patent applications.
The unitary patent for Switzerland and Liechtenstein is a patent having a unitary character over the territories of Switzerland and Liechtenstein. It can either be a national patent, or a European patent granted under the European Patent Convention (EPC) and having a unitary character pursuant to Article 142(1) EPC. The unitary patent "may only be granted, transferred, annulled or lapse in respect of the whole territory of protection," i.e. for both Switzerland and Liechtenstein.
The following outline is provided as an overview of and topical guide to patents:
The WIPO Hague System provides an international mechanism for securing and managing design rights simultaneously, in multiple countries and regions, through one application filed directly with WIPO. The resulting international registration provides design owners with the equivalent of a bundle of national or regional registrations. The subsequent management of that international registration – including modifications, updates and renewals – is a single step procedure through WIPO.
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