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Dr Claudia Tapia assesses the impact of perceived high invalidity rates on business and innovation
04 July 2016
The Patent Lawyer has published a paper on the impact of perceived high invalidity rates on business and innovation authored by 4iP Council Chairwoman and Director of Intellectual Property Policy at Ericsson, Claudia Tapia.
Tapia’s paper questions the accuracy of alarming messages on patent quality and examines their impact on the capacity of European entrepreneurship, in particular SMEs, to innovate. Start-ups, SMEs as well as large companies depend highly on investors, and the latter will only invest if they trust the system (including the quality of the patents that protect the inventions of those companies they are considering supporting financially).
Tapia’s report considerably undermines the claims that patent quality is poor, concluding that in Germany validity is contested in only half of the infringement cases. From those 50% where validity is contested, in over half of the cases there is no decision, i.e. the parties just settle. As a result, the fully invalid patents represent merely about 0.02% of 1.25 million granted patents in first instance. She also points out that of the fully invalidated patents, only around half are maintained invalid in the second and final instance and that patents are in most of the cases still valuable or even stronger after being partially invalidated.
She concludes that investors can continue trusting the current patent system, in the knowledge that most of the granted patents are (fully or partially) valid, and encourages a closer dialog between the EPO and the German court of first instance (Federal Patent Court) in order to apply the same standard of ‘inventive step’, thus reducing the number of (few) invalidation cases.