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DE – Are Patents merely “Paper Tigers”?

17 Nov 2014
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Are Patents merely “Paper Tigers”?, by Peter Hess, Dr. Tilman Müller-Stoy and Martin Wintermeier, Bardehle Pagenberg

Patents, whose legal validity is assumed generally and particularly in infringement proceedings, are in fact subject to a considerable risk of being declared invalid in Germany. The present contribution confirms this based on a statistical evaluation of the case law of the German Federal Patent Court and the German Federal Court of Justice in nullity matters in the period from 2010 to 2013.

The identified facts and figures can be summarized as follows: 

  • The invalidation rate of all Senates of the German Federal Patent Court is 79.08% in total.
  • The invalidation rate of the German Federal Patent Court regarding the S/T patents which are (currently) of particular relevance from an economic point of view is even 88.11%.
  • The invalidation rate of the German Federal Court of Justice regarding confirming judgments is 75.25%
  • The invalidation rate of the German Federal Court of Justice regarding amending judgments is 80.56%.
  • The invalidation rate of the German Federal Court of Justice regarding confirming judgments concerning S/T patents is 79.41%.
  • The invalidation rate of the German Federal Court of Justice regarding amending judgments concerning S/T patents is 73.34%.
  • The German Federal Court of Justice has confirmed approx. 60 % of the judgments of the German Federal Patent Court and has amended approx. 40 % of the judgments of the German Federal Patent Court.
  • About 2/3 of the amending judgments of the German Federal Patent Court are in favor of the patent proprietor.
  • The main ground for invalidations by the German Federal Patent Court is lack of patentability in 75% of the cases, followed by “Miscellaneous” with almost 12%, inadmissible extension with almost 11% and lacking enablement with approx. 2%.
  • A significant difference in the invalidation rate of German patents as com-pared to the invalidation rate of German parts of European patents is not established; in fact, the rates are nearly identical.

 Read the entire contribution on the Bardehle Pagenberg website here.