"Are appeals and oppositions even possible when people like Battistelli can harass Board judges (appeals)? Or retaliate against Office staff (oppositions)?"SUEPO published two large documents recently; these pertain to exemptions from law for EPO management, but what about patents that get issued and those impacted by such patents? Are appeals and oppositions even possible when people like Battistelli can harass Board judges (appeals)? Or retaliate against Office staff (oppositions)?
Not too long ago there was a successful opposition to a patent on life. Yes, the EPO had been granting patents on life itself, but in one case (at least one) EPO staff rejected the patent. It was about CRISPR. Professor Jake Sherkow of New York Law School has just written about a CRISPR patent appeal in the US. He said that this "demonstrates that patents covering even revolutionary technology can be legally mundane and still have significant real-world impact," having not actually opposed this practice.
But another post on the subject of appeals came from the US yesterday. It was the CCIA writing about the EPO, which is rare. "Approximately 4% of European patents are opposed, and of those, approximately 32% of oppositions are not instituted," Josh Landau wrote yesterday. To quote the relevant paragraphs:
EPO Oppositions and Nullity Proceedings
In Europe, rather than inter partes review and district court litigation on validity, there are opposition proceedings at the European Patent Office (EPO) and nullity proceedings in European national courts.
Oppositions
Oppositions are the most similar European procedure to U.S. post-grant proceedings like IPR. So it’s instructive to examine how many European patents are opposed and the outcomes of those oppositions.
Fortunately, the EPO makes available detailed statistics on exactly these questions. Approximately 4% of European patents are opposed, and of those, approximately 32% of oppositions are not instituted. 27% of oppositions result in a final decision invalidating all claims of the patent, while the remaining 40% of patents are modified in some form and maintained as patents. (EPO opposition statistics appear to omit patents where the parties settled mid-proceeding.) Each year, the EPO handles approximately 4,000 oppositions, meaning that approximately 1,100 European patents are invalidated in their entirety on a yearly basis.