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.

Patent Prosecution Highway

The Patents Prosecution Highway is properly marketed as being a program that can result in fast examination for those applications that can take advantage. However there is a good deal of false marketing on the basis that it assists in handling the backlog.

Few usable statistics are available – largely because few applicants take advantage. The best source is the statistics page on the Patents Prosecution Highway portal.

The statistics show a major reduction in the time to first office action, and time to final decision. This shows that the offices participating take the program seriously. With the low number of participating applications, it is not too hard for the participating countries to handle the cases.

However, the portal also shows some irrelevant statistics. The grant rate and first action allowance rate for PPH cases is shown in comparison with the general rates for the countries concerned. It is this that has caused some unnecessary excitement as to whether the program can affect backlogs in examination.

It is hardly surprising that if an application has been found patentable by one examiner, it will have a higher chance of being found patentable by another examiner. To determine whether PPH has any positive effect would require comparing those cases that could participate in PPH but didn’t; with those that could and did. 

However at present, the presentation of the grant rate and first action allowance rate on the PPH portal is largely meaningless. Re-shuffling the queue does not necessarily change the length of the queue.

Of course, if the shuffling is done in a way that persuades some people to leave the queue, that might help.  How about reverse PPH – if you have no claims found allowable at the office of first filing, you go to the back of the queue?

In Memoriam Ray Bradbury [1920-2012]

 [Loosely in the style of Something Wicked This Way Comes]

It was high summer in the fairground and the manager was concerned.  The rumble in the distance was not thunder, but the grumbles of those queuing for the fair rides. The queues grew longer, the crowd more restless, the grumbles more constant. He shivered.

Since a disastrous and unmentionable accident, State law had required that every person entering a ride be checked to ensure that they were over adult height: a minimum height of 4 foot.   At the entrance to each ride, potential customers were checked for their height and this introduced an inevitable delay.   Or was it inevitable?  

The fairground manager had had a brilliant idea.  Once a person passed the height check at the first ride, he would be given a pass entitled a "person passes height” (PPH) pass.  This PPH pass would permit the user to go to the head of the queue at another ride.  Surely this would speed matters up, thought the fairground manager.  

However he soon found that this was not the case.   The queues waiting for each ride did not shrink and became full of those who were too short to pass at a different ride but thought they might stand a chance at this one; and of those who were new to the theme park and hadn’t taken a ride on anything yet.  Where did the problem lie?     

There – there - there!! Each ride operator considered themself responsible for ensuring that their customers pass the State test, and was not willing to take the word of another ride owner.   Even though a customer had a PPH, their height was still checked.  

Said one of the ride operators:

“Like other operators I am very happy to let customers with a PPH go to the head of the queue, since I have been told that statistically they are far more likely to pass the height test than the customers at large.  

However I could not possibly trust the word of another ride owner in this matter.  

It seems to me that each ride uses a different measure to test the height of the customers, and indeed each ride operator uses the measure differently [some with shoes on, some with shoes off, and so on].

State law requires that ride operators are responsible and so each of us is independently responsible for determining “infantive height.”     

Well, thought the fairground manager.  All I seem to have done with my PPH is to change the quality of the backlog and perhaps increase the level of complaint from those in the backlog.   Nothing will really change until I can persuade the individual ride managers to accept at least in part the word of another ride manager, or persuade those who do not pass the test at one ride not to try at another.

The fairground manager looked at the operator: the operator looked at the manager. They shivered in mutual recognition.

TO BE CONTINUED…..?

Typical patent fees

There is much nonsense talked about the relative costs of patenting in Europe, USA and Asia. There are cost differentials but for the normal user of the system these are not huge. Officialdom is particularly liable to exaggeration.

For a pungent and pointed commentary on officialdom's inclinations see this CIPA press release.