Going undercover – strawman oppositions at the European Patent Office (EPO)

What are strawman oppositions?

European Patents can be opposed within a nine-month opposition period started by publication of grant of the Patent in the European Patent Bulletin.  “Any person” can file an opposition, aside from the patent proprietor themselves.

As any person can oppose a Patent, this allows Opponents to hide their true identity.  A “strawman opposition” is an opposition that has been filed to conceal the true identity of the opponent.  

A strawman opposition can take a number of forms: either by filing the opposition in the name of a third party “strawman” entity that you can pay a fee to use; or by filing the opposition in the name of a patent attorney firm as opponent.  If your usual patent attorney firm are easily identifiable as your representative, they can prepare the opposition and ask another unrelated firm to complete the filing.

Whichever option is taken, the goal is to conceal the true identity of the opposing party.

Why would you use a strawman opposition?

Opponents opt to be a strawman if they want to conceal their identity from the Patentee and/or the wider public.

Opponents may not want to alert the Patentee to their activities which may be potentially infringing if the Patent is upheld.  They may also want to conceal their identity if they are conducting settlement/licence or other commercial negotiations with the Patentee.  Having a pending opposition is also potential leverage in settlement negotiations

They may also wish to distance themselves from comments made on the public record, e.g. if it may impact their own patent filings.  

Many companies may also not want the fact they are opposing other companies’ patents to be public knowledge, and so they use the strawman option to conceal this.

 How to maintain strawman status throughout the opposition process?

Patentees will of course try to guess who is behind the opposition.  As an Opponent you can take steps to make this more difficult, for example by removing internal references from documents that may indicate the Opponent’s true name (or part of it) and by ensuring any prior art documents provided do not state who downloaded them and where.  

When considering expert witnesses, you should choose these carefully to avoid revealing the identity of the true Opponent, e.g. by selecting an expert from a different company or institution.  Similarly, when filing experimental evidence, you should consider who experiments are attributed to (e.g. they could be carried out by an independent contract research organisation (CRO)), to avoid revealing the identity of the Opponent.  

If the oral proceedings are virtual, any attendees from the true Opponent should consider joining the proceedings as a member of the public.  This avoids the need to announce them at the oral proceedings which would reveal their identity.  If the oral proceedings are in-person, you may decide for attendees from the true Opponent not to attend to maintain anonymity.

How to argue against a strawman?

As a Patentee, you largely argue against a strawman in the same way as you would against a non-strawman opponent.

However, you should consider the wider context of why an Opponent wishes to remain anonymous.  For example, it may indicate that a party is potentially infringing your Patent.  It may also indicate that a party has their own IP that is close to your own, in which case you may need to consider your own freedom to operate position.

If you have any questions on oppositions or appeals at the European Patent Office, please contact our experienced oppositions team.