Outcomes of invalidity proceedings
When invalidity proceedings in Germany are concluded with a decision, significantly more than half of all patents are either partially or fully invalidated.
The high rates of invalidation reported above are not specific to Germany. Early studies on U.S. patent litigation unveil an invalidation rate of 60% to 70% for the period 1948 to 1954 (Federico, 1956) and roughly 65% from 1953 to 1978 (Koenig, 1980). Allison and Lemley (1998) report an overall invalidation rate of 46% for the period of 1989 to 1996. More recently,
Mann and Underweiser (2012) find for the years 2003 through 2009 that the Federal Circuit held 60% of the patents in the cases it adjudicated not valid.
In other countries, invalidation rates are in similar ranges. For Australia, Weatherall and Jensen (2005) report a rate of full or partial invalidation of 53% (first and second instance) for the period of 1997 to 2003. Oyama (2012) finds an invalidation rate of 73% at the Japanese district courts, and a UK study examining the years 2000 to 2008 indicates an overall rate of about 50% partially or fully invalid in the first instance (Helmers and McDonagh, 2013). France seems to be special case, with according to Véron (2010) only 27% of the cases before the court of first instance in Paris between 2000 und 2009 resulting in a revocation decision.
Given that globally more than half of all invalidation proceedings concluding with a decision lead to partial or full invalidation of the patent, the question arises which factors correlate with, or even drive, the likelihood of invalidation.
Why most patents are invalid – Extent, reasons, and potential remedies of patent invalidity
29 September 2014
Early draft, comments welcome
Joachim Henkela, b, Hans Zischkaa
a TUM School of Management, Technische Universität München
Arcisstr. 21, 80333 Munich, Germany.
henkel@wi.tum.de,
zischka@wi.tum.de. +49 89 289 25741
bCenter for Economic Policy Research (CEPR), London, United Kingdom
https://www.tim.wi.tum.de/fileadmin...Henkel_Zischka_Patent_Validity_2014-09-29.pdf