Must-Know: Patent Litigation in Germany – Part 1

Veröffentlicht am: 9. August, 2016

In this article offers a rough overview of the relevant German patent litigation frameworks, as an aid for counsels dealing with matters in which the topic of patent litigation in Germany arises. Though this article is addressed for professionals every can read it to get a feel how German (patent) litigation works.

Germany is one of the leading entry points into the European Union market, as well as being the largest marketplace in the European Union. Germany is the busiest and most attractive jurisdiction for an efficient patent enforcement strategy in Europe. However, the German legal system is, in some respects, different from the legal systems of many other European states and the United States, providing a unique set of circumstances for those wishing to litigate in Germany.


Patent Litigation: The German Courts

In Germany, patents are enforced in courts instead of patent offices or other government agencies. There are 12 regional courts (Landgerichte) that have jurisdiction to hear patent infringement cases in the first instance. However, the vast majority of cases are brought in only four of these courts – Düsseldorf, Mannheim, Munich and Hamburg). These
three courts alone hear over 900 cases a year (more than in all other European jurisdictions!).

Each of the regional courts has one or more specialist patent litigation panels consisting of three judges. The judges are all legally qualified and although they do not have a formal technical background, they are typically very experienced in patent matters.

Appeals against judgments of the regional courts are heard by the higher regional courts (Oberlandesgerichte), which have similar specialist panels for patent litigation comprised of three judges. There is one higher regional court for each regional court. On appeal, the higher regional courts can review issues of law and fact. However, the parties can introduce new facts only under limited circumstances, (for example, if the facts were unknown during the first instance).

Subject to certain restrictions, judgments of the higher regional courts can be further appealed on issues of law and brought before the Federal High Court of Justice (Bundesgerichtshof) as the court of third and final instance. Incidentally, the Federal High Court of Justice is also the court of final instance in patent validity proceedings (see Question 3).


Infringement Proceedings

A fundamental feature of the German legal system is that patent infringement and validity proceedings are bifurcated— the patent infringement action and an action on validity are heard in separate instances and by two different, specialised courts.

Validity proceedings for the German designation of a European patent or German national patent are heard exclusively by the Federal Patent Court (“Bundespatentgericht”) in Munich; appeals from these proceedings are heard by the Federal Court of Justice.

As a consequence of the separation of proceedings in Germany, a validity defence in infringement proceedings “as such” is only possible insofar as, if a separate attack against the validity of the patent in dispute has been made, parties may motion the infringement court to stay the infringement procedure until the opposition/nullity procedure has reached a first instance decision on the validity of the patent in dispute, or even has come to a final decision. German infringement courts are obliged by law to assume the validity of the patent, and cannot hear validity arguments raised by the defendant in the infringement proceedings or in claim interpretation.


Part 2: Further details to remedies and costs

In Part #2 of the article series we will be talking about the remedies one can make and what cost risks you have. The article will be out soon, so stay tuned! 🙂


Patent Litigation in Germany – count on us!

Our lawyers are here to help you and find the best solution to protect your patent. We represent you before the German Patent and Trademark Office, the European Patent Office as well as the Federal Patent Court and the Federal Supreme Court.

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Image: Hans / / CCO License  

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