In this three-part series, we will explore EPO oppositions and their role as a powerful commercial tool. In this first part, we look at the breadth of commercial outcomes that oppositions can be used to drive. In the second and third parts, we will then turn to look at blueprints for driving these commercial outcomes as an opponent and as a patentee.
Covering a GDP of $13 trillion, and having a similar population reach to the USPTO, the Unified Patent Court has rightly fuelled a rise in European patent enforcement. Forward-thinking business owners recognise the immense opportunities the new court presents. But rather than detracting from the commercial power of EPO oppositions, the UPC emphasises the strategic importance of EPO oppositions.
As a forceful counterweight to the UPC, oppositions remain the only route - and a cost-effective one at that - to centrally challenge problematic patents across all European Patent Convention countries. Not only that, but a range of commercial aims can be achieved by the tactical use of oppositions. In this first part of the three-part series, we take a look at the commercial aims which can be pursued with oppositions.
Gain a competitive edge
When your competitor is relying on that key patent to protect their market position, filing an opposition to revoke their rights is the ultimate maneuver. Even tactically narrowing a competitor’s patent claims may give you the manoeuvrability - or your competitor the headache – that’s needed to gain a competitive edge. As the patentee, a successfully defended opposition will increase the perceived threat.
Manage risk
All businesses balance risk and consequence. But not all realise the opportunities that oppositions present for active and systematic management of that risk. As the opponent, even forcing the patentee to characterise their invention relative to the art may give you the comfort that you need.
Enable negotiation
Oppositions offer powerful negotiation leverage. They can be used – both as the opponent and as the patentee - to bring your competitor to the negotiation table. This leverage is only strengthened by the fact that oppositions can be withdrawn, or their course manipulated. They are therefore a powerful tool when negotiating everything from licenses and settlements, to collaboration and joint ventures. This is perhaps one of the most significant - yet underutilised - commercial uses of oppositions.
Steer the competitive landscape
Oppositions can be used to steer the market and the technology landscape. A filing will inevitably have an influence on your competitor’s R&D plans and on their ongoing IP strategy. As the patentee, being on the receiving end of an opposition is a good time to review your position and steer your portfolio to improve your standing. Even investors and third parties may stand to gain – or lose – from the outcome of the opposition, not least in heavily regulated fields or in fields subject to standardisation.
Gain competitor insight
Opposition submissions can also reveal valuable information to leverage about a competitor’s commercial aims, and potential weaknesses – particularly if you can as the patentee uncover the true identity of the opponent.
Attract investors
Whether opposing a competitor’s patent, or defending your own, strategically handled oppositions can without doubt increase your attractiveness to investors – or reduce that of your competitors.
Final thoughts
In summary, identifying and exploring the commercial outcomes that can be achieved through oppositions is the critical first step to devising a business-focussed oppositions strategy. And as we’ve seen, the potential advantages are significant, ranging from gaining a competitive advantage, managing risk, enabling negotiation, steering the competitive landscape, gaining competitor insight, and attracting investors.
In part 2, we will turn to the Opponent’s blueprint, and explore the proactive steps a business needs to take with its strategies, as Opponent, to achieve those commercial outcomes.