Strengthening the impact of third party observations at the European Patent Office
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According to Article 115 EPC any person may present observations concerning the patentability of the invention in respect of which the application has been filed. Such third party observations sometimes are also called “poor man’s opposition”. Third party observations may be filed – without incurring official fees – by any third party with regard to a pending European patent application or during an ongoing opposition against a granted European patent. As the third party filing the observation will not become party to the proceedings, until now most parties have preferred to await the grant of the European patent and then to file an opposition, thus getting the status of a party of the proceedings (opponent). However, on May 10, 2011 the EPO released both a decision of the President of the European Patent Office and a notice from the European Patent Office, both largely strengthening the effects of a third party observation. According to the decision of the President, the third party observations may be filed by means of an online form. The EPO has set up a dedicated internet platform (http://tpo.epo.org/tpo/app/form) on which such third party observations may be filed online. Important: The platform encourages that such submissions may be done anonymously. The notice from the European Patent Office dated May 10, 2011 also encourages the filing of third party observations and informs all interested parties that the EPO has changed its practice to ensure that examining and opposition divisions comment explicitly on the relevance of third party observations. In other words, the examining or opposition divisions now can no longer simply put the arguments and facts of a third party observations aside, but rather have to comment thereon in detail. As to pending European patent applications, such third party observations may even be filed after the EPO has issued the communication under Rule 71(3) EPC preparing the grant of the European patent. Summary: Strengthening of third party observations at the EPO:
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