In Germany, an increasing number of patents are struck down in nullity proceedings. As a result, two German studies suggested that a respective percentage of all patents granted had to be considered latently invalid, in some areas more than 70 per cent. Were this true, it would be a concern – for right holders and for the patent system at large – because infringers then could disrespect patents and gamble to sue them out of their way, should they ever be sued for infringement. Two questions need to be answered: first, how valid are patents issued by the world’s leading patent offices? Secondly, how much legal certainty can patent holders expect from these patents? In Germany, the balance seems to be struck too far against patent holders because granted patents must be reliable; why else should SME applicants, especially start-ups, seek costly patent protection?
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