Revocation Proceedings

The validity of a patent can be challenged by means of a revocation action. Revocation proceedings offer the opportunity to enfeeble the basis of an infringement complaint by limiting or completely revoking the underlying patent. Cancellation proceedings for utility models, trademarks, and designs serve the same purpose.

In Germany, revocation proceedings against patents are heard before the Federal Patent Court (Bundespatentgericht, BPatG), with appeals before the Federal Court of Justice (BGH).The Unified Patent Court (UPC) is responsible for revocation proceedings relating to European patents with unitary effect. Revocation actions against the respective national parts of European patents may continue to be brought before the national courts for a specified transitional period. 

Before anything else, a decision on the continuance or invalidity of a patent comes down to a technical/legal assessment: Is priority validly claimed? Has a patent been inadmissibly extended with technical information? Is a patent’s subject matter sufficiently disclosed technically? Is it novel relative to the prior art? And based on inventive step? The technical and patent-related expertise necessary in these cases cannot be overstated. Typically, a comprehensively strong technical history must be elaborated over the course of revocation proceedings on a patent.

Cancellation proceedings of utility models, trademarks, and designs can take place before the German Patent and Trademark Office (DMPA). They end with a decision and with the possibility of appeal to the Federal Patent Court (BPatG).