Patent invalidation and legal certainty – What can patent holders expect?

20 March 2017

Abstract: Germany is one of Europe’s most important patent centres: as regards patent grants and also as regards patent infringements. This may be why the German patent scene in the last two years has been looking at the success rates of nullity suits filed with the German Federal Patent Court (BPatG) – under two different aspects: In 2014, a first legal article concentrated on the problem of lack of legal certainty for patent holders and on investment risks posed by the seemingly boundless possibilities for challenging patents in nullity proceedings. The article called for these risks to be addressed more carefully, not to the least in view of Art 14 German Grundgesetz (GG), which safeguards the right to property. Another article from the same year, motivated more along the lines of innovation theory, took said success rates as a reason to fundamentally criticise patents under the provocative title “Why most patents are invalid”. This article scrutinised both, individual points within the criticism, as well as allegedly far-reaching conclusions regarding patents at large. According to industry reports, these conclusions have been affecting patent value, and they also may pose a threat to the system as such – unjustly so, as this article will show!

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