Since the introduction of the Unitary Patent and the Unified Patent Court (UPC) in 2023, the landscape of patent protection and challenge in Europe has shifted. For patent holders, competitors, and all stakeholders in innovation, opposition proceedings before the European Patent Office (EPO) have become strategically more relevant.
What Are Opposition Proceedings?
After a European patent has been granted, any person other than the proprietor can file an opposition within nine months. The goal is to challenge the validity of the patent based on the possible grounds of patentability (typically lack of novelty and inventive step), insufficiency of disclosure and added matter.
The patent may be maintained as granted, amended (narrowed), or revoked. The decision has effect retroactively for all designated states. The opposition is thus a powerful and cost-effective mechanism compared to fighting invalidity state by state.
Why Is Opposition Gaining Importance?
The unitary patent system introduces a centralized litigation for European patents, but it does not replace opposition proceedings at the EPO. Instead, it co-exists, and in many ways even increases the stakes in opposition.
1. Broad Impact, Centralized Action
After grant of a European patent, a proprietor may request unitary effect, thereby getting unitary patent protection in currently 18 EU Member States. A single opposition at the EPO can thus have a broad territorial impact – making it the most efficient way to challenge such a Unitary Patent at an early stage.
2. Cost-Effective and Predictable
Compared with newer UPC revocation actions, EPO opposition remains the tried-and-tested path – procedurally familiar, well-understood, and significantly less expensive. For many businesses, it is the logical first step to “clearing their way”.
Conclusion
The Unitary Patent System has not diminished the importance of opposition proceedings at the EPO – rather, it has made them more central to patent strategy in Europe. For opponents and patentees, the opposition system remains a powerful, affordable, and territorially-broad tool to shape patent validity. The nine-month post-grant period might feel long, but it’s a window of opportunity that should not be missed.
To learn more, please feel free to reach out.
Oliver Jeker
