On Legal Validity – Using the Work of Patent Courts for Quality Management

The Statistical Reutilization of Patent Court Appeal Decisions

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Abstract

The patent courts of the world's leading patent systems annually pass judgment in more than 12,000 cases originating from decisions made at first instance. These judgments constitute a statistically significant resource of final opinions relating to the quality of the work of the legal authorities, but one that has so far not been systematically exploited by the patent offices. This paper shows, for the first time, a way to provide objective and cost-efficient metrics for the work of patent offices and patent attorney professionals. Accordingly, the following key conclusions are developed in this paper:

  • Patent case law is sufficiently representative and suitable for statistical analysis of first instance decisions;
  • The current academic approaches to legal validity analysis of patent court decisions seem not sufficiently transparent for the application in patent and trademark office operative quality systems;
  • The legal remedies of refusal and opposition appeal can be modeled;
  • Legal validity and the harmonization level of a patent system are measurable;
  • The legal validity of European Patent Office (EPO) refusal decisions appears to be comparatively higher than the validity of opposition decisions in view of the EPO Boards of Appeal;
  • The analysis methodology for the EPO is fully transferable to the worldwide relevant patent systems whilst retaining their national legal autonomy;
  • The new EU Patent: there will be a degree of competition between EU patent revocation procedure and the EPO opposition procedure. In future, it will be necessary to evaluate also the quality of the EU Patent Court of First Instance.

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