“Process patents are weak because their infringement is difficult to prove!” is a widespread opinion. And it is certainly not unfounded: how can you even establish that someone is using the protected process if it is carried out behind closed doors? And even if you suspect that an infringement is taking place, how can you prove this assumption?

These potential difficulties can tempt people not to consider patent protection for a process invention on principle. In many cases, however, this not only means missing out on opportunities, but also taking risks.

Whether a patent is strong or weak, good or bad, depends less on the type of claim and more on the concrete circumstances and the situation-specific purpose of the patent: What economic advantages does the new idea bring? Where and against whom is the new Patents intended to have an effect? How is IP perceived in the Industries? The benefit of the patent does not always lie solely in its enforceability. And even if enforceability is important, the patent owner is not as weak as sometimes assumed.

Read our grips 2018/03