Patent Infringement

Patent infringement proceedings in Germany and Europe are critical mechanisms for enforcing patent rights. They involve asserting the patent holder’s exclusive rights against unauthorized use of their invention. The process, including preliminary injunctions, is highly developed in Germany and serves as a model for other jurisdictions.

1. Patent Infringement in Germany

1.1. Legal Framework

• German Patent Act (PatG): Governs patent rights and enforcement.
• European Patent Convention (EPC): Relevant for European Patents validated in Germany.

1.2. Types of Infringement

1. Direct Infringement (§ 9 PatG):
• Unauthorized production, use, offering, or selling of the patented invention.
2. Indirect Infringement (§ 10 PatG):
• Supplying or offering essential means for exploiting the patented invention, knowing they are intended for infringement.

1.3. Jurisdiction

• Patent infringement cases are handled by specialized patent chambers in regional courts, such as Düsseldorf, Mannheim, and Munich.
• Appeals are heard by the Higher Regional Courts, with final appeals on legal issues decided by the Federal Court of Justice (BGH).

1.4. Procedure

Pre-Litigation Stage

• Warning Letters: Patent holders may send cease-and-desist letters to alleged infringers, offering a chance to settle without litigation.
• Preliminary Investigation: Patent owners often conduct infringement and validity analyses.

Filing a Complaint

• The patent holder files a lawsuit with the regional court having jurisdiction.
• Claims include injunctions, damages, and destruction of infringing products.

Court Proceedings

• Written Stage: Exchange of pleadings, including statements of claim and defense.
• Oral Hearing: Arguments presented before the court, often involving technical experts.
• Decision: Regional courts typically issue decisions within 12–18 months of filing.

Enforcement

• Successful claimants may enforce injunctions and damage awards through court bailiffs.

1.5. Remedies

1. Injunctions (§ 139 PatG):
• A permanent injunction to cease infringing activities.
2. Damages:
• Calculated based on:
• Lost profits of the patent holder.
• Reasonable royalties.
• Profits gained by the infringer.
3. Destruction (§ 140a PatG):
• Destruction of infringing products.

2. Preliminary Injunctions in Germany

2.1. Legal Basis

• Governed by the German Code of Civil Procedure (ZPO) and interpreted in conjunction with patent laws.

2.2. Requirements

1. Urgency:
• The patent holder must demonstrate that immediate relief is necessary to prevent irreparable harm.
• Typically, injunctions are sought within 1–2 months of becoming aware of the infringement.
2. Likelihood of Infringement:
• Clear evidence of infringement must be presented.
3. Validity of the Patent:
• Courts may require proof that the patent is highly likely to withstand validity challenges, often via prior opposition or nullity proceedings.

2.3. Procedure

• Applications for preliminary injunctions are submitted to regional courts with specialized patent chambers.
• Decisions are often rendered within a few weeks, sometimes without a full oral hearing.

2.4. Enforcement

• Preliminary injunctions are immediately enforceable but can be appealed.

3. Patent Infringement in Europe

3.1. Legal Framework

1. European Patent Convention (EPC):
• European patents granted by the EPO must be validated in individual countries to take effect.
2. Unitary Patent and Unified Patent Court (UPC):
• The UPC allows centralized enforcement for patents with unitary effect across participating EU Member States.

3.2. National vs. Centralized Proceedings

1. National Proceedings:
• Patent enforcement in countries like France, the UK, and Germany follows national procedures.
2. Unified Patent Court (UPC):
• Centralized court for infringement and revocation of Unitary Patents and, optionally, European patents during the transitional period.

3.3. Jurisdiction of the UPC

1. Local Divisions:
• Handle infringement cases.
2. Central Division:
• Deals with revocation actions and declarations of non-infringement.
3. Court of Appeal:
• Located in Luxembourg for appeals on UPC decisions.

3.4. Cross-Border Infringement

• Under the Brussels Regulation, patent holders can bring infringement actions in jurisdictions where infringing activities occur or where the defendant resides.

4. Preliminary Injunctions in Europe

4.1. Differences Across Jurisdictions

1. Germany:
• High success rate for injunctions, provided urgency and validity are established.
2. France:
• Preliminary injunctions are granted more cautiously, requiring robust evidence.
3. The Netherlands:
• Known for efficient and fast-track preliminary proceedings.

4.2. Unified Patent Court

• The UPC allows for preliminary injunctions enforceable across all participating states. However, the requirements (e.g., urgency, evidence) are expected to align with best practices from national systems like Germany.

5. Strategic Considerations

5.1. Forum Shopping

• Germany, particularly Düsseldorf, is often chosen for infringement cases due to its experienced courts and plaintiff-friendly timelines.

5.2. Validity Challenges

• In Germany, validity challenges are handled separately in nullity proceedings before the Federal Patent Court (BPatG). This bifurcated system allows infringement cases to proceed independently.

5.3. Opting Out of the UPC

• Patent holders may opt out of UPC jurisdiction for European patents to avoid centralized revocation risks.

5.4. Defensive Strategies

• Alleged infringers may:
• File a revocation action to challenge the patent’s validity.
• Seek a declaration of non-infringement.

6. Key Case Law

BGH, Judgment of 10 May 2016 – Case X ZR 114/13 ("Wärmetauscher"):

• Addressed the balance between technical contribution and inventive step in infringement disputes.

UPC Preparatory Work – Injunction Guidelines:

• Provided a framework for handling preliminary injunctions under the UPC.

7. Role of our Patent Law Firm

Pre-Litigation:

• Conducting infringement analyses and preparing warning letters.
• Advising on evidence collection and urgency for injunctions.

Litigation:

• Representing clients in infringement proceedings in national courts and the UPC.
• Drafting pleadings and coordinating cross-border actions.

Post-Litigation:

• Enforcement of court orders, including injunctions and damages.
• Advising on settlement and licensing agreements.

Conclusion

Patent infringement proceedings in Germany and Europe offer robust enforcement mechanisms for patent holders, with Germany being a preferred jurisdiction for its efficient and specialized courts. The introduction of the Unified Patent Court further centralizes enforcement for Unitary Patents, streamlining cross-border litigation. With the complexity of legal systems and strategic nuances, our patent law firm plays a critical role in ensuring effective protection and enforcement of patent rights.