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Stijn Lagaert

Did you know about the use of a straw man in opposition proceedings?

YES – you can oppose a European patent while maintaining anonymity.

When a European patent is granted, there is a nine-month window during which it may be opposed to attempting to revoke the patent or to restrict its scope of protection. The patent can be opposed by any person (legal or natural), other than the original patent proprietor.

In Europe, an opposition may be filed by a “straw man”, a person who files an opposition in his own name while acting for another that remains anonymous.     The European Patent Office accepts such oppositions provided that the use of a straw man does not circumvent the law by abuse of process.

In G3/97 and G4/97 decisions, the Enlarged Board of Appeal clarified that such a circumvention of the law arises, for example, if the opponent is acting on behalf of the patent proprietor.

However, the opposition would not be considered as inadmissible purely because a professional representative is acting in his own name on behalf of a client, if an opponent either with a residence or principal place of business in one of the EPC contracting states is acting on behalf of a third party who does not meet this requirement or if the “straw man” opponent confirms that he is acting for a third party.

In any case, the principle of the free evaluation of evidence applies. The burden of proof lies with the person alleging that the opposition is inadmissible and this proof must be clear and unequivocal.

It is important to note that the possibility to file an opposition in the name of a straw man is not acceptable before all national/regional offices. For example, in the United States, a petition for a post-grant review (which is similar to opposition proceedings in Europe) must be filed before the United States Patent and Trademark Office by a real party in interest.

If you want to learn more about the strategy around straw man oppositions and their commercial interest to any business for which anonymity may be advantageous, please do not hesitate to contact our patent experts. 

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