Never mind the detergent -- patents can also dissolve: an update on Unilever/P&G's Ariel warfare

Back at the beginning of last month, this weblog hosted a guest piece, "Unilever's Ariel assault on P&G: a victory/defeat in the Netherlands", by Denise Verdoold and Maarten Rijks (both of Dutch law firm Banning NV, The Netherlands), which attracted no little attention. Since then there have been further developments, on which the Kats are grateful to have been updated by Lucy Samuels (Gill Jennings & Every LLP, London). Lucy writes:

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wringing the last drop of validity from patents 

On 2 March, the IPKat reported on Unilever’s “laundry detergent war” against P&G in the Netherlands. As Procter & Gamble’s representative for the EPO strand of this case, I can provide an update. The IPKat piece finished (under the heading “The Sequel”) with a report, apparently originating from the Financieel Dagblad, that Unilever had withdrawn from the European opposition proceedings. In fact, that was incorrect and Unilever continued to defend the patent throughout – right up to the EPO appeal hearing that took place on Wednesday last week.

Instead, the event that caused a pause in the Dutch proceedings was that the EPO’s Technical Board of Appeal issued a preliminary opinion that the patent lacked an inventive step.  That brought into doubt the Dutch court’s conclusion, in awarding the preliminary injunction, that there was no serious, non-negligible chance that the patent would be revoked.

In spite of some further arguments from Unilever in response to the preliminary opinion, the patent was eventually revoked at the EPO hearing (actually on the basis that the claims lacked basis in the original parent application, rather than for lack of inventive step). That brings to an end the litigation not only in the Netherlands but also in France and the UK, where Unilever had also brought infringement proceedings.

This is a good outcome for Procter & Gamble. But on a more general level I think it is a good reminder of the power of an EPO opposition to bring an abrupt end to the uncertainty and expense of patent litigation across Europe. It highlights the fact that the EPO’s Boards are not afraid to take the robust decision, however high the stakes. 

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It is also an example of quite a common outcome of the European patent opposition procedure. Those of us who deal with the EPO’s Opposition Divisions and Boards of Appeal on a regular basis are well aware that maintenance of a patent by an Opposition Division is not necessarily a reliable indicator of whether the patent will survive an appeal. On the issue of added subject-matter in particular, our experience is that the Boards can be much less forgiving than Opposition Divisions. This appears to be borne out by the statistics too. An interesting post on the K’s Law blog some time ago (here, at para 5.1) showed, albeit from a relatively small sample, that even when an opposition had been rejected initially, only 42% of cases were maintained unamended on appeal. Strangely, the most common outcome, after rejection of the opposition by the Opposition Division, was revocation of the patent. This should perhaps act as a warning to patentees to assess rigorously the prospects of success at the EPO appeal stage rather than proceeding with infringement action directly after maintenance by the Opposition Division.

Thanks so much Lucy, says the IPKat. It's good to receive this update, together with the added-value warning about rigorous assessment of the prospects of success before the EPO -- but would this advice, which looks pretty sage from the stand-point of a patent attorney, be corroborated by a solicitor born and bred in the tough environment of patent infringement litigation and who, be fiercely driven by an anxious client with pan-European commercial interests, might prefer to make short-term considerations paramount?

Merpel is just pleased to see that, for once, a blog post that contains the words "EPO", "robust decision" and "however high the stakes" has nothing to do with industrial action ...