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Can The Actions of a Blog Be a Basis for Getting Costs in an EPO Opposition?

By Peter Zura

Mikkel Hippe Brun, who operates the blog Schemaworks, writes about various technical, policy and patent issues issues surrounding the IT industry.  Recently, he became aware of a patent directed to a "Communication Routing Apparatus."  In a nutshell, the patent describes a middleware product (e.g. an ESB) where the ESB acts as an intermediary messaging hub between many IT-systems.  The patent is directed to protocol/content conversion between senders, the hub and receivers.  To date, the patent owner, which is a relatively small company, has not made any overt attempts to litigate or license the patent

Brun took considerable interest in this patent and concluded that, in his opinion, the patent covered basic concepts on how electronic invoices received from multiple sources and in multiple formats are converted into a standardized format.  Accordingly, Brun led the charge on a campaign to oppose the patent after it was issued.
 
The campaign had an apparent impact - in a short while, 29 parties launched 19 oppositions in the EPO against the patent.  Needlees to say, the patent owner (the "proprietor" in EPO-speak) was not happy with the innundation of opposition requests.  Under the EPO rules, costs may be apportioned among the parties:

Each party to the proceedings must bear the costs it has incurred. However, an Opposition Division may, for reasons of equity, order a different apportionment of such costs, which may have been incurred during the taking of evidence, in oral proceedings or under other circumstances.

The patent owner viewed the actions of the opponents, particularly in light of Brun's campaign, as "abusive" and argued to the EPO that the door has now opened for the awarding of costs.  From the proprietor's EPO response:

19 notices of oppositions have been filed naming 29 parties. It is believed that the large number of oppositions is due to a blog created by one Mikkel Hippe Brun which can be seen at http://blog.schemaworks.com/

For example, the blog has EPO Form 2300 available as a download to enable opponents to launch oppositions.

Whilst it is accepted that any person may give notice of opposition under Art. 99 EPC, it is submitted that setting up a blog to inundate the proprietor with oppositions is an abusive process which puts the proprietor as a relatively small company at a significant disadvantage. The proprietor requests that the Opposition Division bear this in mind during the opposition procedure, particularly with regard to requests for extension of time and an award of costs, if deemed appropriate.

While the success of this argument is certainly a long-shot, it does highlight some of the concerns US practitioners have on a post-grant regime: what, if any, protections should be put in place to protect smaller companies against such a scenario?

Hat tip: the blogging team at the PatLit blog.

Full post as published by Two-Seventy-One Patent Blog on August 27, 2010 (boomark / email).