Wednesday, 3 December 2014

Are patents only Paper Tigers?

An interesting article by Peter Hess, Tilman Müller-Stoy and Martin Wintermeier published in the German journal "Mitteilungen der deutschen Patentanwälte" compiles a lot of statistics on the outcomes of nullity actions in at the German Patent Court and the BGH. An English version was made available by the law firm of the authors Bardehle Pagenberg here
In a nutshell, the report shows that almost 80% of the nullity actions are at least partially successful in that the patents are partially revoked, wherein 43% of the patents are totally revoked. In the field of Software and Telecommunications technology, the rates are even higher According to the authors "one might possibly even speak of a failure of the patent system" in this field.  The authors want to initiate a discussion on examination quality.
Konstantin Schallmoser comments on the EPLAW blog that the invalidation rate is not surprising given that nullity actions are usually filed only if a preliminary assessment of the case shows that there are reasonable chances of success.

This blogger wants to add that the sample of patents subject to a nullity action is not representative for the patent system as a whole for other reasons. Invalidation makes economical sense only if the patent has a high economical importance, which might speak in favour of a high quality of the underlying invention. On the other hand, the efforts and time usually spend for the invalidation search is much higher than what a patent office can do within the (financial) limits set by the official fees. The functioning of the patent system depends not only on the quality but further on the affordability of the examination. My feeling is that the offices strike the balance quite well, though there is some room for improvement of course.

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