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Opposition and Nullity

A granted patent can be revoked by opposition proceedings or by nullity action upon request for the following reasons:

  • Lack of Novelty
  • Lack of Inventive Step
  • Patent Application was filed by a non-entitled Person/Organization (only available in an opposition or nullity proceeding against a German patent)
  • Lack of Disclosure
  • The Subject Matter of the Patent is excluded from Patentability

At the beginning of opposition proceedings or nullity action by file inspection possible weak points of the patent in question can be localized. With a search additional prior art can be found for attacking the patent in question.

Opposition Proceedings

The opposition proceedings are inter-partes proceedings before the respective offices (EPO or GPTO) and thus comparatively cost efficient. Each party has to bear its own costs. The costs of the opposition proceedings are independent of the amount in dispute and the value of the patent, respectively. In order to file an opposition within the appropriate term, the filing activities of the competitor have to be monitored.

Strategie

For a European patent opposition proceedings can be commenced within nine months after mention of grant of the European patent in the European Patent Bulletin. An opposition against a European patent can not be based on the ground that the patent application was filed by a non-entitled person/organization. The decisions of the Opposition Department of the EPO can be appealed at the Boards of Appeal of the European Patent Office.

For a German patent an opposition can be launched within nine months after mention of grant of the German patent in the German Patent Bulletin. An opposition against a German patent can additionally be filed, if the patent application was filed by non-entitled person/organization. The decisions of the Patent Division of the German Patent and Trademark Office about the opposition can be appealed at the Federal Patent Court.

Nullity Action

If the term for filing an opposition has lapsed and if no opposition proceeding is pending at the EPO or GPTO, nullity action can be filed against a German patent or a German part of a European patent at the Federal Patent Court. The Nullity Action is an inter-partes proceeding with court and attorney's fees that depend on the amount in dispute and the value of the patent, respectively. The nullity action has accordingly a relatively high cost risk. The judgments of the Nullity Senates of the Federal Patent Court can be appealed at the Federal Court of Justice.

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