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.
Overview
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.
New applications
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.
Granted patents
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.
Oppositions
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.
Key appeal decisions
While the Boards of Appeal have not been able to dispose of as many cases in 2019 and 2020 as in previous years, two cases relating to detergents make for interesting reading: T 1621/16 reviewed the jurisprudence on allowability of amendments when selecting from multiple lists and T1385/15 refreshed our memories on second non-medical use and the Enlarged Board of Appeal decisions T2/88 and G 6/88, showing that these landmark Enlarged Board decisions remain relevant over 30 years later.
T 1621/16
T 1621/16 (decision date 14 October 2019) was an Appeal from an Opposition Division decision to revoke European Patent 2 264 138 for non-compliance with Article 123(2) EPC with regard to amendments made to a claim to a liquid hand-dishwashing composition. The amendments included replacement of the feature “from 0.1 % to 20 % by weight of the total composition of a chelant” with “from 0.2% to 3% by weight of the total composition of glutamic-N, N-diacetic acid”, with the narrower range being indicated in the application as filed as a preferred range, and glutamic-N, N-diacetic acid being a preferred example of a chelant.
The Board held that the amendments did not add subject matter and were in fact compliant with Article 123(2) EPC, since the selections were made from lists of converging alternatives, rather than lists of non-converging alternatives, providing the following headnotes:
1) When fall-back positions for a feature are described in terms of a list of converging alternatives, the choice of a more or less preferred element from such a list should not be treated as an arbitrary selection, because this choice does not lead to a singling out of an invention from among a plurality of distinct options, but simply to a subject-matter based on a more or less restricted version of said feature.
2) A claim amended on the basis of multiple selections from lists of converging alternatives might be considered to meet the requirements of Article 123(2) EPC if:
- the subject-matter resulting from the multiple selections is not associated with an undisclosed technical contribution, and
- the application as filed includes a pointer to the combination of features resulting from the multiple selections.
T1385/15
T1385/15 (Decision date 3 December 2019) was an Appeal from an Opposition Division decision to revoke European Patent 1 865 998 for lack of novelty of a second non-medical use claim. The claim was directed to “use of a cleaning agent which contains at least two different surfactants…for destroying/inactivating microorganisms from the group comprising bacteria, viruses, and fungi in the mechanical disinfection of articles.”
The patent had been opposed on the basis that the use claim was not new compared to a document D1a (WO 03/064580), taking into account a secondary document D2 (US 6,376,448). It was not disputed that D1a disclosed, inter alia, the use of such a surfactant mixture for destabilizing prions in the mechanical disinfection of medical devices, and that D2 disclosed, inter alia, the antibacterial activity of a surfactant mixture according to the claims when surfaces are cleaned manually.
The Opposition Division revoked the patent, stating that the distinguishing technical feature had been made available to the public earlier. However, the Board overturned this decision, applying the reasoning of G6/88 and reinforcing that a lack of novelty can only be recognized if all technical features of the claimed invention have been made available to the public in conjunction with one another. Even if the guiding principle (of G6/88) does not specifically specify this requirement, it is clear from the decision itself that this is to be understood in this way.
Summary
The above data and analysis confirm that the fast-moving consumer goods industry is not only highly innovative, but particularly contentious, with more oppositions being filed than would be expected based on the number of patent applications and granted patents and the EPO-wide average.
The detergents industry is highly competitive, even if dominated by only a few major players. Whichever industry a business is in, these statistics based on EPO filings are a key reminder of the importance of intellectual property to maintain a competitive advantage, with patent filings forming a central pillar of the business’ commercial strategy.
For more information on patent strategy, whether filing, prosecution or opposition, and utilizing patent analytics as a business intelligence tool, please contact David Hammond or your usual HLK contact.
Author
David Hammond is a UK/European patent attorney and partner in Haseltine Lake Kempner's chemistry and life sciences patent department. He advises on inventions in different fields in the healthcare sector. For more information on patent strategy, whether filing, prosecution or opposition, and utilizing patent analytics as a business intelligence tool, please contact David Hammond or your usual HLK contact.
Appendix
Identification of “detergents” (applications, patents, opposed patents) is here based on IPC class C11D:
C11D DETERGENT COMPOSITIONS (preparations specially adapted for washing the hair A61Q5/02, A61K8/00; methods or apparatus for disinfection or sterilisation A61L; special washing compositions for cleaning semi-permeable membranes B01D65/06); USE OF SINGLE SUBSTANCES AS DETERGENTS; SOAP OR SOAP-MAKING; RESIN SOAPS; RECOVERY OF GLYCEROL
C11D1/00 Detergent compositions based essentially on surface-active compounds; Use of these compounds as a detergent
C11D3/00 Other compounding ingredients of detergent compositions covered in group C11D1/00; Non-surface-active compounds
C11D7/00 Compositions of detergents based essentially on non-surface-active compounds;
C11D9/00 Compositions of detergents based essentially on soap (compositions containing resin soap C11D15/04)
C11D10/00 Compositions of detergents, not provided for by one single preceding group
C11D11/00 Special methods for preparing compositions containing mixtures of detergents (in the form of blocks, bars, tablets C11D17/0047); Methods for using cleaning compositions;
C11D13/00 Making of soap or soap solutions in general; Apparatus therefor (resin soap C11D15/00)
C11D15/00 Manufacture of resin soap or soaps derived from naphthenic acids; Compositions
C11D17/00 Detergent materials characterised by their shape or physical properties (soaps C11D9/00, shaping soap C11D13/00)
C11D19/00 Recovery of glycerol from a saponification liquor (refining glycerol C07C31/22)