In Europe, national patent litigation and/or proceedings before the Unified Patent Court (UPC) frequently run in parallel with opposition proceedings at the EPO.
EPO opposition cases can, however, take months, or even years, before a first-instance decision is issued.
In a notice from 2023 (OJ EPO 2023, A99), the EPO announced that it would accelerate opposition proceedings once informed of parallel infringement or revocation proceedings before a national court or the UPC. In such cases, the EPO aims to shorten the length of the entire procedure from start to finish to foster legal certainty for the parties and the public.
Where a rapid decision is expected in opposition proceedings, the UPC has the option to stay its own proceedings pending the outcome before the EPO (Article 33(10), Unified Patent Court Agreement, and Rule 295(a), Rules of Procedure).
However, early UPC case law suggests that the court is inclined to deliver on its promise of procedural efficiency by reaching a first-instance decision within 12–16 months from the first statement of claim.
By contrast, opposition proceedings before the EPO are subject to an inherent procedural delay, as they cannot be initiated until the expiry of the nine-month opposition period under Article 99 of the European Patent Convention. As a result, an EPO opposition may not even have been filed by the time UPC proceedings are commenced. This procedural asymmetry is well illustrated by Amgen’s European patent 3 666 797: the patent was granted on May 17 2023, a revocation action (UPC_CFI_1/2023) was brought before the UPC less than three weeks later, on June 1 2023, and the EPO opposition period did not expire until February 19 2024.
While the efforts of the EPO to accelerate opposition proceedings are commendable, the structural need for greater procedural speed at the EPO remains. Against the backdrop of the UPC’s rapid timetable, the time may therefore be ripe for the EPO to reconsider the appropriateness of the nine-month opposition period.
