We have analysed filing, grant and opposition data at the European Patent Office for a number of technology areas, with a focus on trends over the last few years in technical areas which have unusually high numbers of opposition proceedings. Our first article analysed foodstuffs patent data (read it here). This article reviews patent trends in the field of detergents, as defined by the classification C11D.
Detergents are fast-moving consumer goods (FMCG) – the products are typically sold for relatively low cost but in high quantities. It is apparent from the patent data that FMCG products are highly competitive and thus worthy of patent protection, perhaps due to the need to maximise profit and return on R&D investment on products that typically have low profit margins per unit sale.
As has been well documented elsewhere, filing and opposition activities at the EPO was significantly affected by COVID-19, either through reduced filings, or lower numbers of oppositions being concluded in the absence of face-to-face opposition oral proceedings and low initial uptake of video conference (ViCo) oral proceedings. The annual data for 2020 may therefore represent an outlier compared to previous years, and so the data presented in this article is an amalgamation of 2019 and 2020 together, the last two full years for which information is more or less complete.
The IPC C11D and all its sub-classes relate to “detergent compositions” (see the appendix below). In 2019 and 2020, taken together, detergents patents opposed accounted for 2.5% of all oppositions, but detergents patents granted accounted for around 0.4% of all patents granted. This suggests that around 6 times more detergents patents were opposed than might have been expected, again suggesting an industry sector not averse to beginning contentious proceedings to maintain or increase market share.
Focusing on 2019 and 2020, the last two full years for which information is more or less complete, around 1,450 detergents applications were published. These detergents applications belonged to about 280 different applicants. The top 3 applicants accounted for over 40% of all detergent applications, while the top 5 applicants accounted for over 50%. The top applicants are shown in Table 1.
Looking at the numbers of granted patents in the same time period, about 1,000 detergent patents were granted. These 1,000 patents belonged to around 220 different patent proprietors. The top 5 patent proprietors accounted for over half of those patents. The top 50 proprietors to receive granted patents in this area are shown in Table 2.
Detergent patents opposed accounted for 2.5% of all oppositions, but detergents patents granted accounted for around 0.4% of all patents granted. This suggests that around six times more detergents patents were opposed than might have been expected.
The 170 detergents patents opposed in 2019 and 2020 belonged to 30 different patent proprietors. The top four patent proprietors owned about one third of all opposed detergents patents. The top 4 opposed patent proprietors owned more than two thirds of all opposed detergents patents, with the top 16 listed in Table 3.
The 170 opposed detergents patents were subject to 220 oppositions, an average of 1.3 oppositions per opposed patent. The 220 oppositions were filed by around 30 different opponents. The top four opponents accounted for 70% of all the 220 oppositions, with the top 17 listed in Table 4.
In 2019 and 2020, opposition to 147 detergent patents were finally decided, with the outcomes set out in Table 5. This amounted to 2.3% of all oppositions decided in 2019 and 2020.
Over the two years in review, the outcome of a finally decided opposition to a detergent patent was rather more likely to be “patent revoked” than it was the outcome of all finally decided oppositions, as can be seen from Figures 1(a) and 1(b).
A final decision on an opposition may be a first instance decision made by an opposition division of the EPO if no appeal is entered against the first instance decision. If an appeal against the first instance is entered and not withdrawn, the final decision is that of a Board of Appeal of the EPO.
In 2019 and 2020, oppositions to 7 detergent patents were withdrawn before any first instance decisions on the oppositions to the patents were issued. In 5 cases the patentees of detergents patents indicated that they would not approve any text for the patents concerned, effectively “self-revoking” the patents before any first instance decisions on the oppositions to the patents were issued.
Opposition to 55 detergent patents were decided in the first instance, with no appeals entered. In a further 19 cases appeals were entered but were withdrawn before any appeal decisions; the first instance decisions remained in force. In one case the appeal was found to be inadmissible, and so the first instance decision remained in force. Opposition to a total of 75 detergent patents were finally settled by first instance decisions, with the proportions of outcomes shown in Figure 2.
In the cases of two patents appeals were entered against the first instance opposition decisions but the patentees then indicated that they would not approve any text for the patents concerned, effectively “self-revoking” the patents before any appeal decision. In one case the appeal proceedings were terminated because the patent had lapsed in all countries.
Oppositions to 57 detergent patents were finally settled by appeal decisions, and the first instance starting points for the appeal decisions are rather different from the outcomes of the appeals as can be seen in Figures 3 and 4.
First instance decisions “opposition rejected” (only the opponents can appeal) are relatively infrequently confirmed on appeal. First instance decisions “patent revoked” (only the patentees can appeal) are most often confirmed. First instance decisions “patent amended” (either or both opponents and patentee can appeal) are often revised on appeal. However, patentees less often appeal “patent amended” first instance decisions: 13 appeals by opponents only; 6 appeals by opponents and patentees; and 2 appeals by patentees only. Overall, appeal decisions broken down by first instance decision can be seen in Table 6.