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Wednesday, 11 May 2016

Are most patents in Germany valid after all?

In February this year, the IPKat reported on a study that showed that around 80% of all patents subject to a nullity attack in Germany were fully or partially invalidated. My comment at the time was that it was not entirely correct to count all partial invalidations as losses for the patentees, as often amended claims will only add minor limitations that do not effectively stop the enforceability of the patent.


From Hüttermann, Patents - Paper Tigers or Real Tigers?
In a recently published note, Aloys Hüttermann makes an additional point. He argues that only in about 50% of all infringement cases in Germany does the defendant raise a counter-claim for nullity before the Federal Patent Court. In other words - so Hüttermann - in half of the cases, the defendant accepts that the patent is most likely valid and an invalidity claim pointless. If one adds those cases to the overall number of litigated patents,  about 60% rather than only 20% of granted patents are maintained (see table; note that the number of additional cases is somewhat arbitrary, as Hüttermann admits. There are roughly 1,200 infringement proceedings commenced in Germany per year).


If I may add another twist - it could well be that a defendant believes the patent to be invalid but refrains from filing a nullity suit because he believes that his non-infringement arguments are strong and he will prevail in the infringement proceedings. In other words, not filing an invalidity suit is not necessarily indicative of the strength of the asserted patent. Comment section is open...

4 comments:

Patentmeister said...

There is also the possibility that the Defendant believes the patent is invalid but for reasons of commercial certainty would rather have the dispute resolved speedily on the basis of the infringement issues rather than slowly via the Federal Patent Court.

Sceptic said...

What about this twist: the patentee who does not start an infringement action because he supposes that his patent would not be held valid anyway and prefers not to have a decision on this issue?

I think that the sample "litigated patents" is strongly biased anyway. There is no room for litigation where the validity and infringement is clear.

kant said...

If you want to play around with statistics, you could include the patents which are subject to opposition proceedings and litigation, since in Germany a revocation action cannot be considered while there is a pending opposition.

Disheartened said...

Surely these 1200 infringement cases are completely dwarfed by a far, far larger number of cases where people simply have no grounds to attack the validity of the patent. So they don't do anything that would infringe it, and there is no court case at all.

Perhaps someone should do a statistical study to determine the percentage of these statistical studies which are valid.

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