Filing an opposition to a patent is a quick and inexpensive way to attack a patent after grant. Oppositions can be filed against both Austrian patents and European patents.
The term to file an opposition against an Austrian patent ends 4 months after publication of grant. The term for filing an opposition against a European patent is 9 months. After expiry of the opposition period, the patent can only be attacked by a nullity action, which usually entails higher costs. While an opposition against a European patent is conducted centrally against all national parts of the patent, nullity proceedings must be conducted individually against each national part of a European patent.
The main reasons for opposition are lack of novelty, lack of inventive step and lack of workability. The opponent has to furnish the facts which serve as a basis for the opposition in a timely manner, usually in the form of published prior art documents or, in the case of public prior use, witness affidavits.
In Austrian opposition proceedings, an oral hearing may be requested, for example, to hear witnesses or if a piece of evidence is to be examined. An oral hearing is regularly scheduled in opposition proceedings before the EPO.
Opposition proceedings against a national Austrian patent are held before a Technical Division of the Austrian Patent Office (APO) in Vienna. Opposition proceedings against European Patents are conducted before the opposition division of the EPO.
The opposition proceedings end with a decision in which either the patent is revoked in whole or in part, or the opposition is rejected. Decisions of the Technical Division of the APO may be appealed at the Higher Regional Court of Vienna; decisions of the Opposition Division of the EPO can be appealed at the EPO Board of Appeal.
There is no decision on costs in the opposition proceedings, so each party has to bear its own expenditures.
We regularly conduct opposition proceedings both at the Austrian Patent Office and the European Patent Office. We also gladly represent you, either as an opponent or as owner of a contested patent.
