Early Certainty in patent cases involving by opposition proceedings

Abstract

To obtain certainty about the validity and enforceability of a patent one has to go to court for a ruling. It is very important for patent owners and for their competitors to make decisions on product development based upon assumptions about the validity and enforceability of patents before it reaches court. If you are in court after developing a product then something went wrong in that process. An opposition at the EPO seems to be a good idea to test the arguments of invalidity, if you are a third party worried about the scope of the patent. If an opposition is filed against a patent then the time taken until a final decision gives additional uncertainty about the scope of patent protection and may diversely affect what you may or may not do in any national proceedings. The additional time period of uncertainty caused by EPO opposition procedures is explored in this study and compared with the expected time for nullity actions at a national court, exemplified for the German patent court.