Opposition and Patent Invalidity

In practice, a granted patent can disrupt your economic activity because, for example, you cannot bring a long-planned product to market without fear of being attacked by the patent holder. Perhaps you are specifically threatened by a patent, for example by a cease-and-desist letter or patent infringement proceedings? In these cases, there are various ways to take action against the patent. For example, you can file an opposition or nullity action to take action against the patent and secure your entrepreneurial freedom.

An opposition is appropriate if the nine months opposition period has not yet expired after publication of the grant of the patent. In opposition proceedings, the Opposition Division of the German Patent and Trademark Office or the European Patent Office, which is independent of the Examining Division, re-examines the patentability of the patent, including the new state of the art, in proceedings similar to court proceedings.

If the opposition period has already expired, a patent nullity action offers a possibility to proceed against the patent. This is to be filed against German or European patents with effect for Germany before the Federal Patent Court in Munich. Here, a nullity senate consisting of two legal judges and three technical judges re-examines the legal validity of a granted patent.

In Germany, the so-called principle of separation prevails, which is why nullity actions and patent infringement actions are heard before separate courts. Consequently, good coordination of patent attorneys and attorneys at law of both often parallel proceedings is absolutely necessary to represent your interests in the best possible way. As an opponent or nullity plaintiff, you want to ensure that an attacked patent is cancelled as completely as possible or that the patent is at least limited to the extent that your products threatened by the patent are no longer affected. As a patent proprietor, you want to ensure that the patent provides sufficient scope of protection to adequately protect your products against patent infringement, despite the limitations you may have to make to your patent.

We guarantee optimal coordination in parallel proceedings and efficient coordination between patent attorneys and attorneys at law to achieve the best possible result for you.