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.
