Germany: A Review Of The 2016 Full Oppositions Statistics

Last Updated: 27 October 2017
Article by James Ward

Patents opposed

The number of opposed patents reached a new high in 2016, though the year-on-year increase was not very large (ca. 3% more than 2015).

It is notable that a marked increase in grants in the second half of 2015 was followed by a dramatically increased number of patents granted in 2016. It seems likely that an increased level of grants will be maintained at least into the first half of 2017, as illustrated in graphic one, below.

Whether increased levels of grants are a passing aberration or a sustainable trend is yet to be seen.

An increase in patent grants could be expected to mean that more patents will be opposed.

Graphic two, below, might indicate signs of significantly increased numbers of patents opposed at the end of 2016 and the beginning of 2017 (the number given for patents opposed in February 2017 may not yet be finalized).

Who was opposed?

The 2800+ patents opposed in 2016 belong to about 1400 patentees. Around two thirds of opposed patentees (1000+) had each only one patent opposed in 2016. Only one third (ca. 400) of opposed patentees had 2 or more patents opposed.

31 "most opposed" patentees (just 2% of opposed patentees) each had 10 or more patents opposed – accounting for 600 opposed patents and about 20% of the total. The 31 "most opposed" patentees are shown in the table below.

Who filed oppositions?

The 2800+ patents opposed in 2016 faced around 3600 oppositions filed by approaching 1500 opponents. Two thirds (~1000) of opponents each filed only one opposition in 2016. One third of opponents (~500) filed 2 or more oppositions. 1200 oppositions – more or less one third of total oppositions in 2016 – were filed by the 59 most active opponents who each filed 10 or more oppositions. Those 59 opponents are shown in the table below.

10% "straw men"

Two of the opponents in the "Most Active Opponents" table appear to be "straw man" opponents (Strawman Limited and James Poole Limited). It is not possible to identify "hidden" straw men but it seems that well over 150 more or less overt straw men (e.g. individual patent attorneys, patent attorney firms) were opponents in 2016 and filed around 10% of all oppositions.

A rather extreme example of the popularity of straw men in 2016 is shown on the right: 6 patents face 36 oppositions by 13 opponents of which 12 are overt straw men.

Technical fields of opposed patents

The IPC has 639 subclasses – e.g. A01B. The patents opposed in 2016 ranged across 380+ subclasses (primary subclasses assigned to the patents by the EPO). Half of those patents were covered by 38 subclasses, one third by 16, and one quarter by the 10 subclasses shown in the table below.

Patents in subclass A61K ("preparations for medical, dental or toilet purposes") were, by some margin, the most popular targets for oppositions in 2016.

Most Opposed Patents

33 patents as listed in the table below each received five or more oppositions in 2016.

More detail is provided in the table below for the four patents that each attracted more than 10 oppositions. It is noted that of the 13 opponents of the most opposed patent, 5 were overt "straw men". The 11 opponents of the other three patents included only one or two overt "straw men" in each case.

EPO Annual Reports give information on numbers of decisions in opposition cases.

Up to the 2014 Annual Report the reported number of decisions each year was around 2000. In the 2015 Annual Report the reported number of decisions for 2014 was revised upwards from 2143 to 3157 (a 47% increase), as indicated in the table below. The reported numbers of decisions for 2015 and 2016 are at levels more consistent with the "upgraded" 2014 level.

The basis for the "upgrade" is obscure. Perhaps, rather than reporting the simple number of opposed patents for which decisions were made, the number reported is the total number of oppositions against those patents (an opposed patent often being subject to more than one opposition). However, since all oppositions against one patent are handled in the same proceedings and different decisions are rarely made for the different oppositions, it would seem unhelpful to inflate a count of decisions on opposed patents by multiplication with the number of individual oppositions involved.

Beyond this, it is not clear what the nature is of the decisions reported in the EPO Annual Reports. Are the reported decisions first instance decisions by Opposition Divisions, regardless of whether those decisions are subsequently appealed? Are they first instance decisions which became final without appeal? Are they decisions which have become final, whether there was an appeal or not?

Recent EPO Annual Reports have indicated the percentages with which different opposition outcomes – opposition rejected (patent maintained as granted), patent amended (patent maintained in amended form), patent revoked - occurred.

Bearing in mind that it is unclear what the nature of the reported decisions might be, and unclear how or what "inflation" factors might have been applied, the EPO Annual Report information on opposition outcomes should be enjoyed only with due circumspection.

The EPO's online EP Bulletin registers one opposition outcome per opposed patent, regardless of the number of opponents involved.

On inspection it seems that these outcomes are based on opposition decisions which have become final, with or without appeal proceedings.

If only the three main possible outcomes are considered, the picture presented is quite different from that offered by the EPO Annual Reports, in that the chance of patent revocation is markedly higher and the chance of opposition rejection is markedly lower:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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