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.