Opposition proceeding
An opposition proceeding is an administrative process available under the patent and trademark law of many jurisdictions which allows third parties to formally dispute the validity of a pending patent application ("pre-grant opposition"), of a granted patent ("post-grant opposition") or of a trademark.
Patents
In the context of the proceedings at the European Patent Office, third parties may dispute the validity of a granted European patent by filing a post-grant opposition under the European Patent Convention (EPC).[1]
In Germany, third parties may dispute the validity of a pending German patent application under German patent law.
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. Under the new Leahy-Smith America Invents Act, 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 are effective September 16, 2012. [2]
In Japanese patent law, opposition procedure after an examiner's decision to grant a patent was abandoned in 2003; trial for invalidation serves as the alternative.
Trademarks
In the case of trademarks, third parties may use opposition proceedings to "oppose" the acceptance of a trademark application after it has been accepted and published for opposition purposes. If an opposition is defeated the trademark will proceed to registration. Some jurisdictions operate a "post-grant" opposition system, whereby opposition is not possible until after registration (e.g. Japan).
See also
- Patent watch
- Patentability
- Prior art
- Public participation in patent examination (including a discussion on the possibility, in some jurisdictions, for third parties to file observations during the examination of a patent application, see sub-section "Observations by third parties")
References
- ↑ Article 99 EPC
- ↑ "Post-Grant Review Aspect of New Patent Law". The National Law Review. January 23, 2012. Retrieved September 14, 2012.
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External links
- Patent Opposition Database, an online resource launched by Doctors without Borders as "a tool which can be used to explore how to challenge unfair patents and their negative impact on access to medicines." ("About". Patent Opposition Database. MSF Access Campaign. Retrieved October 13, 2012.)