the period before the war are not available, but the writer has been informed that the proportion of applications opposed was 17 percent. The numbers for the years 1935 to 1939, written in parentheses in the table, are estimates of the numbers of applications opposed obtained by taking 17 percent of the number of applications published for opposition and rounding off to the nearest hundred. These estimates, for the 5 years, total 16,000. During this same period the total number of oppositions filed was 51,491 and hence there was an average of 3.2 oppositions to each application which was opposed. The last column of the table indicates that the oppositions were completely successful against about 50 percent of the applications opposed, in the early period. The figures in the last column have no significance in the later period since the backlog of unconcluded cases built up during these years, starting with no cases on hand, is not known. The current results in oppositions are stated to be as follows: in 5 out of 12 cases (42 percent) the patent is denied; in 321⁄2 out of 12 (29 percent), the opposition is partially successful; and in 3%1⁄2 out of 12 (29 percent), the opposition is unsuccessful."

Several surprising things are evident from the figures which have been given, considering only the earlier period which may be more normal than the later period. The statement frequently heard that the examination in Germany is very thorough and strict is borne out by the data which show that the ratio of applications allowed to applications filed was 34.8 percent. Yet despite this fact, oppositions were filed against 1 out of every 6 applications which were allowed by the Patent Office (of course the opposition may raise the ground of prior public use of the invention which would not have been considered by the examiner). The proportion of applications opposed was about 10 times as great as in England where the examination is not as complete as in Germany and the ground of lack of invention is not available to the examiners, and 2 to 3 times as great as in 2 other countries (for which data is available and is given later in this paper) having an examination similar to that of Germany. This fact, and also the high rate of multiple oppositions against the same application, give some support to the complaint sometimes heard that many oppositions are filed as a matter of course without regard to the likelihood of success, for the purpose of harassing the applicants. This explanation, however, is not consistent with the high proportion of successful oppositions.

REVOCATION OR NULLIFICATION OF PATENTS IN GERMANY

The term "nullification" rather than "revocation" is usually used in connection with the proceedings in Germany. After a patent has been granted, it can only be held invalid and revoked or nullified by the German Patent Office. The courts have no jurisdiction to consider the question of validity in an infringement suit, which is concerned only with the construction of the patent and the question of infringement. If the defendant in an infringement suit wishes to raise the question of validity he must go to the Patent Office and the suit will be suspended pending the decision of the Office. According to the German law any person may initiate a proceeding in the Patent Office for determining the validity of a patent and having it revoked or nullified. Under the law before it was amended in 1949, the proSee the article by Dr. Rudolf Busse referred to in note 7 supra.

ceeding could be initiated only during the first 5 years after a patent was granted, but this 5-year limitation has been eliminated from the current law.

The application for revocation must be in writing and must state the facts upon which it is based. If the applicant is domiciled abroad he must furnish security for the costs of the patentee on the latter's demand. The Patent Office fixes the amount of the security and it must be furnished within a specified time; otherwise the application is deemed to have been withdrawn.

After the initiation of the proceedings the Patent Office notifies the patentee and calls upon him to file an answer within 1 month. If no answer is filed the proceeding may be determined at once by default. If the patentee answers, the applicant is notified of the answer. The decision is made after the summoning and hearing of the interested parties. The Patent Office may order the examination of witnesses, and may assess the costs of the proceeding in its discretion. There are provisions for the relief of poor persons. The cancellation proceedings are conducted by an invalidity section which is in effect a court consisting of 2 legal and 3 technical members. These latter do not have any connection with the examining section. From the decision of the invalidity board there is an appeal to the Supreme Court.

Following are given some tables relating to cancellation proceedings, for the periods 1935-39 and 1950-54. The first table gives the number of patents issued in each of the years covered, the number of petitions for cancellation filed, and the number disposed each year. The second table gives the nature of the dispositions.

The ratio of actions to cancel a patent to patents issued was 1.7 percent in the early period, and only 0.4 percent in the later period. The difference in both the number and proportion when compared to oppositions is striking. The lower number and ratio of actions to revoke or cancel is also noticeable in England and in the United States in connection with trademarks. When both proceedings exist the opposition is favored as it prevents the grant of a patent in the first place and also, perhaps, there may be a feeling that the burden of proof in canceling a granted patent would be greater.

SWEDEN

Opposition proceedings in Sweden are in general similar to the German system except that the specifications are not printed at the time the notice is published and the period for opposing is 2 months, and there are a number of other differences in details; there is an appeal to a board of appeals in the Patent Office and the applicant may appeal to the court.10 The following statistics are presented.

The proportion of applications opposed is 6.3 percent. There are no revocation or nullity proceedings in the Patent Office, but any interested person may initiate proceedings against the patentee in court to have the patent revoked. Such actions are not common, only 6 having been filed during the 10-year period 1945-54. The defendant in an infringement suit may raise the question of the validity of the patent but the decision on this defense would be in personam only, as it is in the United States. There have been only 40 infringement cases during the 10-year period 1945-54, in most of which the defense of invalidity was raised. In recent years the courts have found more than half of the patents coming before them wholly or partially invalid.

NETHERLANDS

The period for opposition in the Netherlands is 4 months after publication of the notice in the official journal and the procedure is generally similar to the German procedure. The following tables show the number of oppositions and their disposition during 4 recent years.1

11

10 The information which follows has been supplied by an official of the Swedish Patent Office.

11 These figures are from unpublished annual reports of the Netherlands Patent Office.

Application withdrawn.

126

Dismissed or sustained in part and application allowed with amend

The proportion of applications opposed is 7.6 percent. The second part of the table shows that out of the 763 applications opposed, patents were not issued in 395 cases, or 51.8 percent, and the patents were issued in amended form in 215 cases, or 28.2 percent. The examination in the Netherlands Patent Office is particularly thorough and strict, note that the figures given in the first part of the table show that the ratio of applications allowed to applications filed was 30 percent, yet even here, as in Germany, the results produced by oppositions are high.

There are no proceedings to revoke a patent in the Patent Office. Any person may institute an action in court to annul a patent, within 5 years from the date of the patent, except that there is no time limit in the case of an action brought by the prior patentee on the ground of prior patenting in the Netherlands.

ANALOGIES IN UNITED STATES PRACTICE

The opposition and cancellation proceedings in trademark cases in the United States have been mentioned and it is seen that the practice in a general way is similar to the practice in opposition and revocation proceedings in the patent offices of some foreign countries. There are also a few aspects of the practice in our patent cases which have been sometimes commented upon as similar or analogous to opposition proceedings.

Interferences in the United States patent practice are sometimes referred to as similar to opposition proceedings. This is true only in a very limited respect. An interference between pending applications is a contest instituted by the Patent Office for the purpose of determining which of the two applicants seeking a patent for the same invention is the first inventor and entitled to receive the patent. Between 1 and 2 percent of applications become involved in an interference. In a very broad way it may be considered that the applicant who has filed his application last is opposing the issuance of a patent to the other applicant, on the single ground that he is the first inventor and entitled to receive the patent. Such a ground of opposition does not exist in the countries which have been men

tioned as having opposition proceedings since the right to a patent is determined solely by the filing or priority dates to which the applicants are entitled and testimony as to when an invention was made is irrelevant. In a very small proportion of interferences the issue is what is referred to as "originality," one party claiming that he in fact made the invention and that the other party copied or derived the invention from him. This issue can arise in opposition proceedings in foreign countries, as has been mentioned under England and Germany.

When the interference is between a pending application and an issued patent it may be said in a broad way that the applicant is seeking to have the patent or the claims of the patent involved revoked or nullified on the ground that he is the prior inventor and entitled to receive a patent. By operation of title 35, United States Code, section 135, final judgment in the interference adverse to the patentee constitutes a cancellation from the patent of the claims involved.

During the early stages of an interference either party, with some exceptions, may bring a motion to dissolve the interference on the ground that the claims involved are unpatentable, either unpatentable generally or unpatentable to his opponent, on a variety of different grounds not involving testimony of witnesses. These motions are decided separately from the question of priority and there is no appeal from the ruling of the examiner except that an applicant who did not bring the motion may be in a position to appeal ex parte a ruling of unpatentability, after the interference is over. The moving party in the case of such a motion is in effect opposing the grant of a patent to his opponent on the grounds alleged; he is given a right to be heard, but no right to appeal. There are no recent statistics on the number and proportion of such motions which are brought in interferences, but a sample counted some 10 years ago showed that in 100 interferences, motions to dissolve for unpatentability were brought in 31 of the interferences and were successful in whole on in part in 42 percent of the interferences in which they were brought.

Public-use proceedings under Patent Office Rule 292 12 have some aspect of an opposition proceeding but these public-use proceedings are rare, averaging not more than 1 or 2 a year. They are not available to the public generally, and the procedure followed is such as to discourage them.13 The occurrence of a public-use proceeding is rather fortuitous since information concerning pending applications is not available from the Patent Office (35 U. S. C. 122), most which have occurred following an interference between the same parties.

12 This rule reads as follows:

"Rule 292. Public use proceedings.-(a) When a petition for the institution of public-use proceedings, supported by affidavits, is filed by one having information of the pendency of an application and is found, on reference to the primary examiner, to make a prima facie showing that the invention involved in an interference or claimed in an application believed to be on file had been in public use or on sale one year before the filing of the application, or before the date alleged by an interfering party in his preliminary statement or the date of invention established by such party, a hearing may be had before the Commissioner to determine whether a public-use proceeding should be instituted. If instituted, times may be set for taking testimony, which shall be taken as provided by rules 271 to 286. The petitioner will be heard in the proceedings but after decision therein will not be heard further in the prosecution of the application for patent.

"(b) The petition and accompanying papers should be filed in duplicate, or served upon the applicant, his attorney or agent of record, and petitioner should offer to bear any expense to which the Office may be put in connection with the proceeding."

18 See Charles W. Rivise and A. D. Caesar, Public Use Proceedings, Journal of the Patent Office Society, vol. 23, September 1941, p. 637.