20 August 2014

Accelerated processing upon filing of third party observations

The EPO has recently announced a scheme through which it aims to increase the speed at which it processes certain European patent applications. The “Early Certainty from Search” scheme is intended to benefit both applicants and third parties whose business strategies are dependent on the grant of patent applications by ensuring that decisions on the outcome of such applications are reached more quickly by the EPO.

An interesting development under the new scheme is that if substantiated third party observations are filed against a European patent application then the EPO will accelerate its processing.

This will provide third parties with a means of determining more quickly whether there will be freedom to pursue certain business objectives which could otherwise be affected by a competitor’s granted patent.  This is because upon filing of third party observations, the EPO should arrive at a decision as to whether or not to grant the competitor’s patent in a shorter amount of time.

Previously, the processing of European patent applications could only be accelerated upon request by the applicant.

It is possible to file third party observations against a European patent application anonymously.  However to cause the processing of a pending application to be accelerated under the new scheme, the third party must identify themselves.  It is not yet clear whether observations filed in the name of a European patent attorney on behalf of a third party will meet this requirement, and we will provide further details as they are announced by the EPO, since this is likely to be a popular strategy for third parties seeking to remain anonymous.

Also under the new “Early Certainty from Search” scheme the EPO aims to:
– issue search reports and written opinions on patentability for all European patent applications within six months of their filing date;
– prioritise the processing of pending European patent applications for which examination has already begun;
– expedite grant if a positive search opinion is issued; and
– prioritise processing of oppositions and requests for limitation or revocation