Monday 16 July 2012

Bifurcation – opposition


Recent discussions on the Unitary Patent and the Unified Patent Court have mentioned the issue of “bifurcation” and the effect that this may have on litigation.  

What is not generally appreciated is the effect that bifurcation has on the mechanics of getting patents, on opposition rates, and the cost to business. 
 
From figures obtained from the European Patent Bulletin [up to 2012/28] it appears that about 60% of all EP patents ever opposed have at least one opposition from a German opponent.  Table 1 shows the top 13  opponent countries ranked by number of patents opposed, and also shows the number of oppositions filed per million of population.  

Table 1 – Country of opponent and propensity to oppose
Opponent country
Number of patents opposed
% of all patents opposed
Patents opposed per million population
All opponents
66915
DE
40958
61.2%
502.6
US
7687
11.5%
24.5
NL
4656
7.0%
277.1
FR
3799
5.7%
58.2
GB
3784
5.7%
60.4
CH
3664
5.5%
475.8
SE
2614
3.9%
287.3
JP
1571
2.3%
12.3
AT
1510
2.3%
184.1
IT
1401
2.1%
23.0
DK
1246
1.9%
226.5
BE
1228
1.8%
118.1
FI
839
1.3%
158.3


It can be seen that German has a dramatically higher number of oppositions per million population than the UK and France and I suggest that a factor in this is the presence of the bifurcated system in Germany.  It should be noted that the only other country that comes anywhere near Germany for number of oppositions filed per head of population is Switzerland, which if course trades heavily with Germany.   Bifurcation need not necessarily result in high numbers of oppositions (see Austria) but it is clearly of relevance.

Bifurcation also has a disproportionate effect on German patentees. Table 2 compares the opposition rate experienced by German patentees with that experienced by other patentees.


Table 2 – Opposition rates and neighbourliness
European patents granted
Patent opposed
% opposed
Opposed by home country  opponent
Fraternal opposition rate %
All countries
1146320
66915
5.8%
DE
263781
19705
7.5%
14250
72%
US
273629
15176
5.5%
2760
18%
IT
39163
2075
5.3%
368
18%
NL
41690
3286
7.9%
582
18%
DK
8290
968
11.7%
134
14%
GB
53915
4132
7.7%
500
12%
CH
47911
3518
7.3%
418
12%
FI
10957
682
6.2%
78
11%
ES
5310
248
4.7%
27
11%
SE
25802
1614
6.3%
159
10%
AT
13857
1162
8.4%
104
9%
IL
3666
186
5.1%
16
9%
FR
99380
5172
5.2%
438
8%
JP
215840
7974
3.7%
512
6%
BE
11417
807
7.1%
49
6%
KR
10416
154
1.5%
8
5%
CA
12111
482
4.0%
12
2%

It can be seen that  for German industry most European oppositions could be considered to represent “friendly fire”.

The high opposition rate experienced by German patentees represents a high cost to German industry, both in filing and defending patent oppositions.

Some have commented that the effect of the UPC will be a reduction in opposition rates as centralised attack will be possible at any time for non-opted out European patents. Bifurcation may however result in an increase in opposition rates as others learn Germanic habits.

2 comments:

  1. Thanks for providing the answer to the question why German is relatively more often the language of proceedings in opposition proceedings (cf. my post on the K's Law blog [here])

    ReplyDelete