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Opposition Appeal Insights

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Appeal Impact on Opposition Outcome

How do you advise on Appeal following an Opposition decision? Of course, if the case is of high business value, you will be instructed to proceed with the appeal no matter what.

A modern attorney is, however, more than just an attorney that executes what they are being told. The modern attorney is expected to act as a business partner and present all the facts to their client.

Certain technology fields clearly justify filing an Opposition in general. The following Opposition Outcome stats from the point of view of the Patent Agent show that only 19.5% of Opposed Patents are maintained as granted by the Opposition Division. This means the opponent has at least an 80.5% success or partial success rate, since also getting the scope of the claims as granted limited is a success for the Opponent.

While the above stats relate to all Opposition cases of the relevant IPC, we can further drill-down to understand the impact of  an appeal procedure on the initial Opposition Outcome.

If we analyze only those Opposition cases that included an appeal stage, we obtain the following Opposition Outcome Stats before the appeal stage has been completed:

How has an Appeal stage affected these decisions? The below chart shows the same underlying cases, but once the Opposition Division received the case back from the Board of Appeal. It follows, that with the influence of the Boards of Appeal, the Opposition Divisions finally maintained even less opposed patents as granted. In particular, only 13.6% of the Opposed patents that passed the appeal stage are finally maintained as granted by the Opposition Division (vs 21.5% before the Appeal Stage).

Equally interesting, the number of opposed patents that got revoked increased to 54.3%. Hence, the opposition appeal certainly was beneficial for the Opponent in this IPC domain.

Using these insights in planning your Opposition Appeal strategy will not only improve the decision making process of your client, but will be the first step during your preparation. Once armed with these insights, proceed with studying the similar opposition appeal stats of your responsible Opposition Division members.

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